The Appeal of the Decision in Small Claims


The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic discusses the process of appealing a decision made in the Civil Division of the Provincial Court. This Court is often referred to as the small claims Court. Appeals of decisions made in the Civil Division of the Provincial Court are heard in the Court of Queen’s Bench. The Court of Queen’s Bench process is formal, expensive and complex. You should consult with a lawyer if you want to appeal a decision of the Civil Division of the Provincial Court. All of the information provided below is current as of July 29, 2020

Parties in an Appeal

The person who files a Notice to Appeal is referred to as the appellant. The person(s) who responds to the Notice of Appeal is referred to as the respondent(s).

Reasons for Appeal

You must be able to show that the decision-maker in the Civil Division of the Provincial Court made an error in interpreting the law or the facts of your case. The purpose of an appeal is to review these types of errors.

Serving and Proving Service of Documents

As noted below in Step One, you must serve the Notice of Appeal on the respondent(s). Once transcripts of evidence are available, you must also serve those on the respondents(s) as noted below in Step Three. These documents must be served personally, by registered mail or as ordered by the Court of Queen’s Bench. Proof of service is required. Proof may be provided by way of an Affidavit of Service that is signed by the person that served the Notice of Appeal and transcripts of evidence on the respondent(s). For service by registered mail, the receipt from the post office, a signature acknowledging receipt when the registered mail was picked up, and an Affidavit of Service are all required for proof of service. The Affidavit of Service should describe the method of service (i.e. whether it was served personally on the respondent(s) or by registered mail).

To personally serve a corporation, you must leave a copy of the Notice of Appeal and transcripts of evidence at the corporation’s registered office or hand it to the president, head officer, secretary or a director. You can get the address of the registered office of a corporation as well as names of directors and shareholders by doing a corporate search at a private Registry office. If the defendant is outside the Court district in which you brought your claim, but the defendant has an agent, manager, office manager or other representative living in and conducting their business within the same Court district, then you may serve that representative.

You should have two copies of the Affidavit of Service and the post office receipt if served by registered mail. File one copy with the original Notice of Appeal and mark it as an exhibit to the Appeal documents. Keep the other copy for your records.

 

Steps to Initiate an Appeal

Step One: Serving the Notice of Appeal, Filing in Provincial Court, and Requesting Transcripts

You must file a Notice of Appeal (form CTS3338) in the Provincial Court setting out the reasons for the appeal and serve the Notice of Appeal on the respondent(s) within 30 days of the decision of the Civil Division of the Provincial Court.

You will also need to order transcripts of evidence of your original court hearing from

Transcript Management Services within 30 days of the decision of the Civil Division of Provincial Court. Payment must be made when you place your order. Fees to order transcripts are based on the number of characters transcribed and the turnaround time required. Transcription of one hour of court time with a 30 day turnaround will cost approximately $216. It is important that you keep a copy of the order and payment receipt as you will need this for filing in Step Two.

 

Step Two: Filing in the Court of Queen’s Bench

Within 37 days of the decision of the Civil Division of the Provincial Court, you must file a copy of the Notice of Appeal, Affidavit(s) of Service of the Notice of Appeal, and copies of the transcript order and payment receipt (from Step One) in the Court of Queen’s Bench. Once all of these documents have been filed, the Appeal operates as a stay of proceeding. This means that the Civil Division judgment cannot be enforced or collected until the appeal is decided. This stay of proceedings is, however, subject to any Order of the Court of Queen’s Bench.

 

Step Three: Filing and Serving the Original Transcript of Evidence

The original transcript of evidence must be filed at the Court of Queen’s Bench within 3 months from the date that the Notice of Appeal was filed at the Court of Queen’s Bench. You will also need to serve a copy of the original transcript of evidence on the respondent(s) within 3 months from the date that the Notice of Appeal was filed at the Court of Queen’s Bench, and file the related Affidavit(s) of Service within that same period.

If the transcript of evidence is not available to the Court of Queen’s Bench, the Judge may return the matter to the Civil Division of the Provincial Court for a new hearing or make an order that is considered appropriate in the circumstances.

Concluding the Appeal

The decision of the Court of Queen’s Bench is final and cannot be further appealed. You may abandon or stop the appeal before the hearing by filing a Notice of Abandonment with the Court of Queen’s Bench.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.