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Civil Appeal (Ontario) Legal Guide

(01 November 2021)

    Starting An Appeal

  1. Overview
  2. Court Appeal Routes
  3. Final versus Interlocutory Orders

    Substantive Appeal Law

  4. Standard of Review
  5. Common Grounds of Appeal
  6. Procedural Fairness and Natural Justice
  7. Fresh Law
  8. Evidence on Appeal
  9. Parties to an Appeal

    Procedural Appeal Law

  10. Commencement of Appeal, Time Limits and Time Extensions
  11. Amendment of Appeal
  12. Procedure and Perfection
  13. Motions on Appeal
  14. Summary Dismissal of an Appeal
  15. Main Appeal Orders
  16. Costs on Appeal
  17. Leave to Appeal

    Other Issues

  18. Stays Pending Appeal
  19. Miscellaneous




Starting An Appeal




1. OVERVIEW

Even if you consider yourself legally-knowledgeable, you should still read this. It's surprising how many lawyers don't get this stuff straight.

Basics of Appeal Law

The Nature of an Appeal
The Nature of a Set-Aside
Exhaust Lower Appellate Remedies Before Going Higher
Only One Kick at the Appellate Can?
An Appeal is an RCP 'Proceeding'
Appeal is from Orders, Not Reasons

Practice Where Appeal and JR Together



2. COURT APPEAL-ROUTES

Court 'appeal-routes' are just what they sound like - you take the legal situation you are in now and determine where your court appeal rights, if any, lie (that is, to which particular court). Court appeal-routes as a topic also covers such things as 'leave' (court permission) versus 'as of right' appeals, panel size (number of judges or adjudicators), and the difference between all the courts that hear civil appeals.

Key Concepts

Appeals from the Small Claims Court
Appeals from the Superior Court
Appeals from the Divisional Court
Appeals from the Court of Appeal

Appeals from Tribunals



3. FINAL VERSUS INTERLOCUTORY ORDERS

This topic is about the nature of the orders that you appeal may want to appeal. In a sometimes-questioned effort to restrict the appeals that a party may commence, the Courts of Justice Act (CJA) distinguishes between 'interlocutory' (preliminary) and 'final' orders. The idea is that it should be harder (and sometimes impossible) to appeal interlocutory orders in order to conserve judicial energy, forcing or motivating the parties to 'save' their appeal until the matter is fully dealt with at the trial or hearing stage.

For example, final orders of the Superior Court may be appealed directly to the Divisional Court or the Court of Appeal (depending on whether they are under or over $50,000) [CJA 19(1)(a), 6(1)(b)], but interlocutory order may only be appealed to the Divisional Court with leave [CJA 19(1)(b)]. Leave is basically a cumbersome way to seek prior permission from the court, being modelled on the full appeal 'perfection' procedure and being subject to a shorter time limit.

An example of where an interlocutory order may not be appealed at all is the Small Claims Court [CJA 31] which, by allowing for appeal to the Divisional Court of final orders, implicitly prohibits appeals from interlocutory orders (remember, all appeals are statutory - so if you don't have a stated statutory right to a certain appeal, you don't have it at all). The result is that there is no appeal of interlocutory orders made in the Small Claims Court, not even with 'leave'.

There are other uses of the 'final versus interlocutory' distinction, but you get the idea. The distinction is perhaps the most frequently-litigated - and frequently frustrating - points of law in the appeal courts.

Interlocutory Orders

Determining Final versus Interlocutory Orders (1)
Determining Final versus Interlocutory Orders (2)
Determining Final versus Interlocutory Orders (3)
Determining Final versus Interlocutory Orders (4)
Determining Final versus Interlocutory Orders (5)
Determining Final versus Interlocutory Orders (6)

Final v Interlocutory On-Point Cases

Laments, Musings and Ideas on the Final v Interlocutory Problem




Substantive Appeal Law




4. STANDARD OF REVIEW

Standards of Review - Introduction

Standard of Review - Errors Defined
Standard of Review - Errors of Law
Standard of Review - Errors of Fact
Standard of Review - Palpable and Overriding Error | Part 2
Standard of Review - Extricable Principles of Law
Standard of Review - Questions of Law Only

Standard of Review - Fact Error as Legal Error
Standard of Review - Written Hearings
Standard of Review - Appeal of Judicial Review ('Shoes!')
Standard of Review - for Standards of Review!
Standard of Review - By Topic [*** this could use a chart]
Vavilov



5. COMMON GROUNDS of APPEAL

'Grounds of appeal' refers to classic reasons for appeal, usually (but not always) legal errors. The grounds of appeal listed here are common, procedure-based grounds. In practice though, many grounds of appeal are generated from the substantive law that you are dealing with - ie. with residential tenant law your issues are largely generated from the Residential Tenancies Act (RTA), for contract and tort law they're drawn from the common law, and so on. This section does not cover those, so you will have to refer to more specific and substantive grounds to fully assess your appeal grounds (many of which are covered in this website).

Be careful to distinguish these 'grounds of appeal' from 'types of error' (ie. errors of law, fact and mixed fact and law), which are categorizations used for important 'standard of review' purposes [explained above].

Misapprehension of Evidence

Discretion

Inadequate Reasons

Other Common Grounds of Review




6. PROCEDURAL FAIRNESS and NATURAL JUSTICE

Procedural Fairness (administrative appeals only)

'Procedural fairness' (aka "fairness") is an common-law ground of administrative appeal, growing and thriving with the development of admin law in Ontario and Canada. The parallel court concept is roughly that of 'natural justice', in the sense of a constantly growing body of law. In a very real sense, 'fairness' is walking down the same path that court civil procedure (especially, the Rules of Civil Procedure) has walked before - only for administrative procedures. The very presence of 'fairness' as a legal concept is a sign of the dimishment of the courts and their replacement by tribunals.

Natural Justice (court appeals only)

Natural justice is sort-of a catch-all 'doctrine' which is used in court law to fill-in any logical justice gaps that judges encounter.



7. FRESH LAW

When a party wants to raise new legal issues at the review (appeal or judicial review) (eg. if they didn't raise them at the trial or hearing), this is an issue of fresh law.

Fresh Law



8. EVIDENCE ON APPEAL

Although it is frowned upon, it's not impossible to adduce new evidence on an appeal. The Courts of Justice Act [at s.134(4)] has jurisdiction to consider three forms of such additional evidence - fresh evidence, inferences and references: CJA 134(4).

That said, most litigation on this issue deals with issues of fresh evidence [under CJA 134(4)(b)], which commonly involves situations where a party - after reviewing the judgment's 'reasons for decision' - realizes the need to supplement their evidence case - essentially having a 'second crack' at their trial presentation. The leading case on this is Palmer v The Queen (SCC, 1979). Where the allowing of fresh evidence is sought on an appeal, the motion for it shall be heard at the main appeal hearing [R61.16(2)].

Fresh Evidence | Part 2
Fresh Evidence Practice
Evidence Inferences [CJA 134(4)(b)]
Newly Arising Evidence
Statutory 'Fresh Evidence Assessment' on Appeal [CJA 134(4)(b)]

Rule 61.16(2) - Motions to Receive Further Evidence



9. PARTIES TO AN APPEAL

Tribunal as Party to Appeal

CJA 134(5) - Scope of decisions [scroll down to (5)]




Procedural Appeal Law





10. COMMENCEMENT OF APPEAL, TIME LIMITS AND TIME EXTENSIONS

When Appeal Period Commences
Time Extension to Commence | Part 2
Time Extension to Perfect

Time - 2020 Time Limits Suspension

Rule 3 - Time
Rule 3.02 - Extension or Abridgment of Time
Rule 61.04 - Commencement of Appeals
Rule 61.05 - Certificate or Agreement Respecting Evidence
Rule 61.07 - Cross-Appeals

Rules of Civil Procedure Forms [scroll down to the required form] (forms current at 06 April 2022)
. Form 61B - General Heading in Proceedings in Appellate Courts [Nov. 1, 2005]
. Form 61A - Notice of Appeal to an Appellate Court [Feb. 1, 2021]
. Form 61A.1 - Notice of Appeal to the Divisional Court [Feb. 1, 2021]
. Form 61C - Appellant’s Certificate Respecting Evidence [Feb. 1, 2021]
. Form 61D - Respondent’s Certificate Respecting Evidence [Feb. 1, 2021]
. Form 61E - Notice of Cross-Appeal [Feb. 1, 2021]
. Form 61F - Supplementary Notice of Appeal or Cross-Appeal [July 1, 2007]
. Form 62A - Notice of Appeal to a Judge [Sept. 1, 2020]



11. AMENDMENT OF APPEAL

Rule 61.08 - Amendment of Notice of Appeal or Cross-Appeal



12. PROCEDURE AND PERFECTION

This section is about the actual preparation of the detailed paperwork (or more often now the .pdf files) that complete the 'perfection' [that's what they call it] of the appeal. It's a lot of finicky work, and the court clerk can turn inadequate attempts away, even at the last minute - so it's best to get started right away.

Perfection
Taking Out of Orders Below

Rule 4 - Court Documents
Rule 61.09 - Perfecting Appeals
Rule 61.10 - Appeal Book and Compendium
Rule 61.10.1 - Exhibit Book
Rule 61.11 - Appellant’s Factum
Rule 61.12 - Respondent’s Factum and Compendium

Rules of Civil Procedure Forms [scroll down to the required form] (forms current at 06 April 2022)
. Form 61H - Certificate of Completeness of Appeal Book and Compendium [July 1, 2007]
. Form 61G - Notice of Listing for Hearing (Appeal) [Sept. 1, 2020]



13. MOTIONS ON APPEAL

Interim Orders
Motions - Single Judge versus Panel

CJA 7(2-5) - Court of Appeal Motions and Set Asides
CJA 21(3-5) - Divisional Court Motions and Set Asides
CJA 134(2) - Interim Orders (on Appeal)
Rule 61.16 - Motions in Appellate Court [refers to Rule 37]

Divisional Court

Motions
The usual rule is that motions in the Divisional Court are heard by one judge [CJA 21(3)], though "(a) judge assigned to hear and determine a motion may adjourn it to a panel of the Divisional Court" [CJA 21(4)]. A single-judge Divisional Court motion [brought under CJA 21(3)] may be heard by the panel hearing the full appeal "or another motion in the proceeding properly made to the panel" [R61.16(2.1)].

Setting Aside or Varying Motion Orders

Unlike the 'set aside' provisions at the trial court levels (Small Claims and Superior Court) which can apply to full judgments, the only express set aside provisions in the appeal courts (Divisional Court and Court of Appeal) apply to orders made on motions. That is, "(a) panel of the Divisional Court may, on motion, set aside or vary the decision of a judge who hears and determines a motion" [CJA 21(5)]. This provision [CJA 21(5)] doesn't articulate it's elements more than this, but - if you take into account when the court acting in it's appeal capacity (ie. not hearing a JR) - you can try to draw on RCP R59.06 (Superior Court set-asides) and other set-aside doctrine to construct a reasoned argument for your motion. Such a motion shall be done by "a notice of motion that is served and filed, with proof of service, within four days after the order is made and states that the motion will be heard on a date to be fixed by the Registrar" [R61.16(6)].
Note: Setting-aside full appeal orders is possible, but the Rules of Civil Procedure are vague on the jurisdiction and method for doing this [see 'Re-openings' in "2. Court Appeal-Routes: Key Concepts", above].
Set-Aside of Motions at the Divisional Court

Court of Appeal

Motions
A motion in the Court of Appeal shall be heard and determined by one judge [CJA 7(2)], except "a motion for leave to appeal, a motion to quash an appeal or any other motion that is specified by the rules of court" [CJA 7(3)]. "A judge assigned to hear and determine a motion may adjourn the motion to a panel of the Court of Appeal" [CJA 7(4)]. A single-judge Court of Appeal motion [brought under CJA 7(2)] may be heard by the panel hearing the full appeal "or another motion in the proceeding properly made to the panel" [R61.16(2.1)].

"A motion in the Court of Appeal for an order that finally determines an appeal, other than an order dismissing the appeal on consent, shall be heard and determined by a panel consisting of not fewer than three judges sitting together, and always of an uneven number of judges" [R61.16(2.2)].

Setting Aside or Varying Motion Orders

Unlike the 'set aside' provisions at the trial court levels (Small Claims and Superior Court) which can apply to full judgments, the only express set aside provisions in the appeal courts (Divisional Court and Court of Appeal) apply to orders made on motions. That is, "(a) panel of the Court of Appeal may, on motion, set aside or vary the decision of a judge who hears and determines a motion" [CJA 7(5)]. Such a motion shall be done by "a notice of motion that is served and filed, with proof of service, within four days after the order is made and states that the motion will be heard on a date to be fixed by the Registrar" [R61.16(6)].
Note: Setting-aside full appeal orders is possible, but the Rules of Civil Procedure are vague on the jurisdiction and method for doing this [see 'Re-openings' in "2. Court Appeal-Routes: Key Concepts", above].
This provision [CJA 7(5)] doesn't articulate it's elements more than this, but here's a recent Court of Appeal statement of the legal test for it to operate [Oliveira v. Oliveira (Ont CA, 2022)]:
[5] A panel [SS: under CJA 7(5)] may interfere with the order under review under s. 7(2) of the Courts of Justice Act if the motion judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18.
Set-Aside of Motions at the Court of Appeal



14. SUMMARY DISMISSAL OF AN APPEAL

Quashing
Dismissal for Delay
Death of Appellant
Settlement on an Appeal
Mootness in an Appeal

CJA 134(3) - Power to Quash
Rule 61.13 - Dismissal for Delay
Rule 61.13.0.1 - Automatic Dismissal by Registrar for Delay, Divisional Court Appeal
Rule 61.13.1 - Failure to Obtain Order to Continue Appeal
Rule 61.14 - Abandoned Appeals
Rule 61.15 - Cross-Appeal where Appeal Dismissed for Delay or Abandoned

Rules of Civil Procedure Forms [scroll down to the required form] (forms current at 06 April 2022)
. Form 61I - Order Dismissing Appeal or Cross-Appeal for Delay [Nov. 1, 2016]
. Form 61I.1 - Order Dismissing Appeal to Divisional Court for Delay [Sept. 1, 2018]
. Form 61J - Order Dismissing Motion for Leave to Appeal for Delay [July 30, 2009]
. Form 61J.1 - Order Dismissing Motion for Delay [July 30, 2009]
. Form 61L - Notice of Election to Proceed with Cross-Appeal [July 1, 2007]
. Form 61K - Notice of Abandonment of Appeal or Cross-Appeal [July 1, 2007]



15. MAIN APPEAL ORDERS

Main Orders - Overview

Grant With Terms versus New Trial
Grant With Terms versus New Tribunal Hearing
Remedies on Summary Judgment Appeals
Remand from Supreme Court of Canada



16. COSTS ON APPEAL

Costs on Appeal
Security for Costs

Rule 57 - Costs of Proceedings
Rule 61.06 - Security for Costs of Appeal
CJA 131 - Costs



17. LEAVE TO APPEAL

Leave to Appeal - General
Leave to Appeal - No Reasons Given
Leave to Appeal - Test
Leave to Appeal - CJA 133 Costs and Consent Leave
Leave to Appeal - Tribunal Interlocutory Prematurity
Leave to Appeal - Federal
Leave to Appeal - Costs of the Leave Motion
Leave to Appeal - Leave to the Court of Appeal [CJA 6(1)(a)]
Leave to Appeal - R62.02 Procedures
Leave to Appeal - Time Extension

Appealing Denial of Leave-to-Appeal - the Quixotic Quest

Rule 61.03 - Motion for Leave to Appeal to Divisional Court
Rule 61.03.1 - Motion for Leave to Appeal to Court of Appeal
CJA 133 - Leave to appeal required




Other Issues





18. STAYS PENDING APPEAL

The easiest way to think about 'stays' is to equate them with 'suspensions', though sometimes if a stay is permanent you may as well think of it as a 'cancellation'.

'Stays' can apply to both proceedings and to orders, though in the appeal situation ('stays pending appeal', dealt with here) they are almost always respecting orders. Stays pending appeal draw their jurisdiction from Rules 63 [esp. R63.02] of the Rules of Civil Procedure (below).

Stay Pending Appeal (1)
Stay Pending Appeal (2)
Stay Pending Appeal to the Supreme Court of Canada
Stay Pending Leave to Appeal

Automatic Stay on Appeal

Rule 63 - Stay Pending Appeal
Note:
x As mentioned, there are more general (non-appeal) types of stays that apply mostly to proceedings which draws their jurisdiction from CJA 106 - Stay of Proceedings. Treatment of these general stay cases is located with injunctions, as they have the same general stay/injunction legal test [the RJR-McDonald case] and generally occur at the trial stage of proceedings: Injunctions and Stays. Parties wishing to explore the stay/injunction 'test' more should review cases listed both here and there, as they are much the same and may have cross-over use.



19. MISCELLANEOUS

No Charter Right to an Appeal
Civil or Criminal Appeals

CJA 119 - Power of court on appeal
CJA 132 - Judge not to hear appeal from own decision
CJA 137.3 - Appeal to be heard as soon as practicable [SLAPP]


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