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Civil AppealsStarting An Appeal- Overview
- Court Appeal Routes
- Final versus Interlocutory Orders
Substantive Appeal Law - Standard of Review
- Common Grounds of Appeal
- Procedural Fairness and Natural Justice
- Fresh Law
- Evidence on Appeal
- Parties to an Appeal
Procedural Appeal Law - Commencement of Appeal, Time Limits and Time Extensions
- Amendment of Appeal
- Procedure and Perfection
- Motions on Appeal
- Summary Dismissal of an Appeal
- Main Appeal Orders (Remedies)
- Costs on Appeal
- Leave to Appeal
Other Issues - Stays Pending Appeal
- Re-opening
- 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
Purpose of an Appeal
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
Appeal - Practice
No Appeal of Unopposed Orders
Resolving Multiple Appeal Jurisdictions
Appeals - Real Estate
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 statutory set-asides, re-openings of trial, '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 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 orders 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
Appeals - Interlocutory Orders - Prematurity
Determining Final versus Interlocutory Orders - General
Determining Final versus Interlocutory Order Cases (+)
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 - General
Standard of Review - Errors Defined
Standard of Review - Errors of Law
Standard of Review - Errors of Fact
Standard of Review - Errors of Mixed Fact and Law
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 - Fairness
Standard of Review - Fact Error as Legal Error (+)
Discretion - Standard of Review (SOR) [LINK /discretion]
Standard of Review - Written Hearings
Standard of Review - Expertise
Standard of Review - Appeal of Judicial Review ('Shoes!')
Standard of Review - for Standards of Review!
Standard of Review - Statutory 'Reviews' (unique)
Standard of Review - Exception for Child Protection
Standard of Review - Jury Verdict
Standard of Review - Associate Judge
Standard of Review - Constitutional
Standard of Review - Credibility/Reliability
Standard of Review - Court of Appeal with Leave [s.6(1)(a)]
Standard of Review - Jurisdictional
Standard of Review - By Topic (+)
Vavilov
Standard of Review - 'Developing Themes'
5. COMMON GROUNDS of APPEAL
This section covers generic procedural or evidentiary errors that may be advanced as grounds of appeal. They will crop up regularly (esp. 'misapprehension of evidence') in appeal cases, particularly criminal cases where defendant's counsel are expected to advance any plausible arguments on behalf of their clients.
Note however that in practice most grounds of appeal that are advanced are generated from the substantive law that you are dealing with (and not listed here) - eg. 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.
Appeal Grounds
Appeal - Grounds - Misapprehension of Evidence (+)
Appeal - Grounds - Fact-finding in the Absence of Evidence
Appeal - Grounds - Court's Failure to Test Issue
Appeal - Grounds - Exclusion of Evidence
Appeal - Grounds - Failure to Engage With Party's Position
Appeal - Grounds - Failure to Make Credibility Findings
Appeal - Grounds - Uneven Scrutiny (+)
Review Grounds
The term 'reviews' covers both appeals and judicial reviews - anything that a party hopes might reverse a ruling against them. This link lists 'review' grounds, since they can apply to appeals.
Review - Grounds
CJA 96 - Rules of Law and Equity
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 first hearing), that is an issue of 'fresh law' [SS: my term].
Fresh Law [LINKED from /review]
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 (+)
Fresh Evidence - Cogency
Fresh Evidence Practice
Evidence Inferences [CJA 134(4)(b)]
Newly Arising Evidence
Statutory 'Fresh Evidence Assessment' on Appeal [CJA 134(4)(b)]
Appeal - Administrative Record
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
Appeal - Time Extension - General
Appeal - Time Extension to Commence (+)
Appeal - 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.
Appeals - Notice of Appeal
Appeals - Perfection
Appeals - Taking Out of Orders Below
Appeals - Argument Below in Appeal Record
Appeals - Appeal Book
Appeals - Oral Argument
Appeals - Factum
Appeals - Reply
Appeals - Transcripts
Appeals - Oral Compendium
Appeals - Exhibit Book
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
SPPA 20 - Record of Proceeding
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
Motions - General
Interim Orders
Motions - Evidence
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 CourtMotions
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
I find set-asides of appellate motions (both Divisional Court and Court of Appeal) confusing. For those who do not wish to delve into the reasons for this, it's probably best you just skip right to the case links (below), which set out the courts' perspective on the applicable legal tests.
For those who are still interested in the problems I have, see: Set Asides of Appellate Motions - The Problems.
The case links are here:
Set-Aside of Motions at the Divisional Court [CJA 21(5)] (+)
Setting-Aside Panel Orders [R61.16(6.1)] CasesCourt of AppealMotions
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
I find set-asides of appellate motions (both Divisional Court and Court of Appeal) confusing. For those who do not wish to delve into the reasons for this, it's probably best you just skip right to the case links, which set out the courts' perspective on the applicable legal tests.
For those who are still interested, see: Set Asides of Appellate Motions - The Problems.
The case links are here:
Set-Aside of Motions at the Court of Appeal [CJA 7(5)]
Setting-Aside Panel Orders [R61.16(6.1)] Cases
14. SUMMARY DISMISSAL OF AN APPEAL
Quashing (+)
Dismissal for Delay
Death of Appellant
Settlement on an Appeal
Mootness in an Appeal
Abandonment of an Appeal [RCP 61.14]
Frivolous and Vexatious [RCP R2.1]
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 (Remedies)
Main Orders - Overview
Appeal Court Has Remedies Below [CJA 134(1)(a)]
Grant With Terms versus New Trial
New Trial
Grant With Terms versus Remitting Back Down to Tribunal
Remedies on Summary Judgment Appeals
Case Management Power
Dismissal With Permission to Re-file
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
|||Security [Courts of Justice Act, s.115 (Ont)] [#COURTS]
CJA 131 - Costs [#COURTS]
17. LEAVE TO APPEAL
Leave to Appeal - General
Leave to Appeal - No Reasons Given
Leave to Appeal - Test
Leave to Appeal - Ruling Establishes No Issue Estoppel
Leave to Appeal - CJA 133 Costs and Consent Leave
Leave to Appeal - Costs [CJA 133(b)]
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 - Frivolous and Vexatious [R2.1]
Leave to Appeal - Time Extension
Leave to Appeal - Fresh Evidence
Leave to Appeal - Consolidation of Separate Motions
Leave to Appeal - to Supreme Court of Canada
Leave to Appeal - Intervention
Leave to Appeal - To Panel
Leave to Appeal - Where Prior Judge's Order Requiring Leave
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 mainly from Rules 63 [esp. R63.02] of the Rules of Civil Procedure (below) and the Statutory Powers Procedure Act (SPPA) s.25.
Stay Pending Appeal (+)
Stay Pending Appeal to the Supreme Court of Canada
Stay Pending Leave to Appeal
Automatic Stay Pending Appeal
Stay Pending Appeal - Real Estate
Rule 63 - Stay Pending AppealNote:
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. RE-OPENING
A 're-opening' is just that, a re-opening of the case after a final judgment. Motions for re-openings cannot be brought after the order is formalized, but then a R59.06 set-aside may be sought on rare facts.
Re-opening
20. MISCELLANEOUS
No Charter Right to an Appeal
Civil or Criminal Appeals
Security for Judgment
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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*** note July 2023 re-work at APPEALS
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