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difference between motion and appeal

What is The Difference Between a Motion and an Appeal?

The Canadian justice system aims to provide fair and just proceedings in all matters. Those who feel that they haven’t been treated fairly can file an appeal or a motion to right the injustice.

These are two different legal proceedings, and knowing the difference between them can help protect your rights and escape an unfair conviction. Read on to learn how motions differ from appeals and when to file them.

A Motion

When someone wants to make a formal legal request to a judge for a specific order or ruling, they must file a motion. It is usually done during the trial or court case and refers to that specific case. Motions are filed to the same court dealing with a case. Such requests included requesting the dismissal of the case, excluding or including evidence, asking for an extension of time to file an appeal, and granting summary conviction.

It’s typical for parties to file at least one motion during the trial or court proceedings. The most common one, for example, is the motion to adjourn, which is another way of asking the judge for a break. This is usually during mealtimes or later in the day to conclude the case for the day, and everyone can go to rest.

In criminal cases, the defence can also file a motion for the charges to be dismissed, typically due to a lack of evidence. Likewise, if they want to appeal a decision, they make a motion for Leave to Appeal to request the court’s permission to hear an appeal.

Whatever the motion’s purpose, the party requesting it must file a Notice of Motion with the same court level alongside an affidavit with information supporting the motion. The same court decides whether to grant or dismiss the motion.

The Notice of Motion is included in the Motion Record, alongside the list of related transcripts, affidavits supporting the grounds for the motion, the decision made by the court, and every other information requested by the judge who will hear the motion.

The motion is evaluated and decided upon by one single judge, unless it’s an appeal case, where a panel of judges decides on all parts of the case, including whether to grant or dismiss a motion.

file a motion

An Appeal

If your case is concluded and the decision made by the judge was unfavourable for you, you may be able to file an appeal against the decision. This is a different legal proceeding that takes the case to a higher court, which will review the case and either uphold the decision made during the previous trial, dismiss it, or order a new trial.

For example, if you’ve been convicted by a judge at a federal or provincial court, you may file an appeal at the Federal or Provincial Court of Appeal. Or, if you are unhappy with the decision made by an appeal court, you can take the case higher to the Supreme Court of Canada.

The appeal is made after the final judgment has been rendered (applies to both conviction and sentencing), and sufficient grounds need to be established for the appeal. These often include errors of law, errors of fact, procedural mistakes, or sentence appeal. The last appeal can be made by both the defence and the prosecution if they consider the sentence too severe or lenient, respectively.

When a party wants to file an appeal, they start with filing a Notice of Appeal, alongside the information that supports the ground for appeal. In other words, they must prove that there was a serious mistake made during the previous trial.

The court of appeal reviews the case and decides whether the appeal has merit. If they do, the case proceeds to the court, where it will be heard by a panel of three to five judges. If a court dismisses the appeal, it means they’ve decided against the appellant (the party that made the appeal) and the decision made during the original trial stands.

Sometimes, a motion can be made through the appeal case, but this rarely happens because the appeal court doesn’t review all the evidence in the case. They rely on the previous trial proceedings to evaluate the evidence.

Just like with the Motion Record, appeals are filed as part of an Appeal Book, which contains all the evidence, judgement, orders, grounds for appeal, and any other information required by the court of appeal to make a just and fair decision.

decision made by judge


In summary, a motion is a legal term for asking for a formal proceeding during a trial or court case. It’s made to the same court level and is granted or dismissed by the same. By contrast, an appeal is filed after a trial ends at a higher court level to reevaluate the decision made during the primary trial/proceeding.

This higher court is a Court of Appeals (or the Supreme Court of Canada, which is the highest one in the country), which can decide whether to dismiss or allow an appeal to be heard. The case proceeds to the appeal court only if the appeal is allowed.

Here at AGP LLP, we have vast experience as appeal lawyers. We happily offer a free consultation and can guide you through the next steps in your legal battle. Call us today to see how we can help with your appeal.

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