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Court Appeal RoutesTo locate your 'court appeal route' first you have to identify where - legally - you are now - ie. the tribunal Order or lower Court order that you wish to appeal from. These originating situations are listed below.Note: This appeal guide does not cover appeals to a tribunal, although it does cover some appeals from a tribunal to a court. Practically that means that only higher (court) appeals are covered here. There are dozens and dozens of type of appeals going to administrative tribunals, and they are not yet covered in this Guide. They may however be covered in other Isthatlegal Guides.
Key Concepts Appeals from Interlocutory Versus Final Orders
'Interlocutory' orders are, roughly, temporary procedural orders made to facilitate the conduct of the larger proceeding such as a hearing or trial. 'Final' orders are usually what they sound like - an order that ends the proceeding, unless a further appeal is commenced.
The courts generally prefer to leave interlocutory matters to run to completion (ie. until a 'final order' is reached) before they can be appealed, though there are exceptions. This hesitancy is particularly the case with interlocutory orders made in administrative tribunal (ie. non-court) hearings - ie. you have to wait to the 'final' administrative orders before appealing (again, there are exceptions). The 'final v. interlocutory' distinction is a matter a surprising legal uncertainty [see s.3 in the Appeal Guide homepage].
Leave to Appeal
'Leave' means court permission for a procedural step. 'Leave to appeal' is often required when appealing interlocutory orders, or minor matters when the appealed-to court wishes to limit the number of cases they hear (eg. cost awards, small monetary amounts, and consent orders). When an appeal does not require leave, it's referred to as an 'as of right' appeal. Leave to appeal (from the court to which the appeal is taken) is always required when the order being appealed was made with the consent of the parties [CJA 133(a)].
For more details on leave to appeal, see s.16 of the Appeal Guide homepage..
Inherent Jurisdiction of a Court
There is the concept of the 'inherent jurisdiction' of any Superior Court judge, and even of Federal Court judges and other courts as well. Cases on this issue are located here: Courts - Inherent Powers.
Generally, "(j)urisdiction conferred on a court, a judge or a justice of the peace shall, in the absence of express provision for procedures for its exercise in any Act, regulation or rule, be exercised in any manner consistent with the due administration of justice" [CJA 146].
Caution: Almost all of these appeals (and leave to appeal motions) have very short deadlines, so do not delay in addressing your appeal rights.
Appeals from the Small Claims CourtAbout the Small Claims Court
The Small Claims Court is a branch of the Superior Court of Ontario, limited to lawsuits to $35,000 in value. It also has jurisdiction over recovery of personal property to that value.
New Trials (aka 'Set-aside')
In addition to considering an appeal, a party may wish to consider making a motion for a new trial [under R17.04 of the Rules of the Small Claims Court]. However the grounds for a new trial in the Small Claims Court are quite limited, being restricted to "arithmetical error in the determination of the amount of damages awarded" and "relevant evidence that was not available to the party at the time of the original trial and could not reasonably have been expected to be available at that time" [R17.04(5)]. The Isthatlegal Small Claims Court Guide addresses new trials at: Ch.14 Trials, s.8 New Trial.
Appeals FROM the Small Claims Court
- Small Claims Interlocutory Orders [No Court Appeal Available]
The statutory authority for this rule is at s.31 of the Courts of Justice Act (CJA). Remember that all 'appeals' are statutory? ... a corollary of that is that if no statute provides for an appeal, you don't have one in those circumstances. CJA s.31 only allows for appeals from "final" orders, not interlocutory ones.
Appeals - No Small Claims Interlocutory Appeal, But Judicial Review Sometimes
- Small Claims Final Orders [Appeal to a single judge of the Divisional Court, as of right]
Under CJA s.31, an appeal lies as of right to the Divisional Court from a final order of the Small Claims Court in an action. It shall be to a single judge of that court [CJA 21(2)(b)].
However there is a regulation that limits such appeals to only those ["Small Claims Court Jurisdiction and Appeal Limit" Reg 626/00]: . for the payment of money in excess of $3500, excluding costs; or
. for the recovery of possession of personal property exceeding $3500. This is obviously a policy directed at conserving judicial energy and resources.
Appeals from the Superior CourtAbout the Superior Court
The Superior Court of Ontario is the province's main court, having constitutional status under the Constitution Act s.96.
Re-Constituting the Court
Technically, the Small Claims Court and the Divisional Court are branches of the Superior Court (though I deal with them separately here). As, well the CJA enables Superior Court judges to act as Court of Appeal judges: "A judge of the Superior Court of Justice is, by virtue of his or her office, a judge of the Court of Appeal and has all the jurisdiction, power and authority of a judge of the Court of Appeal" [CJA 4(2)]. And, "(a) judge of the Court of Appeal is, by virtue of his or her office, a judge of the Superior Court of Justice and has all the jurisdiction, power and authority of a judge of the Superior Court of Justice" [CJA 13(2)]. As well, all judges of the Superior are also judges of the Divisional Court [CJA 18(3)].
These multiple-authorities give rise to the interesting issue of 're-constituting a court'.
Re-Constituting a Court
Set-Asides OF Superior Court Orders [R59.06]
In addition to considering an appeal, a party may wish to consider making a R59.06 motion to 'amend, set aside or vary' an order being challenged [under R59.06 of the Rules of Civil Procedure (RCP)] (commonly referred to as a 'set-aside' motion). However, the grounds for such a motion are limited, being restricted to:. an amendment for "an error arising from an accidental slip or omission" or due to "any particular on which the court did not adjudicate" [R59.06(1)], and/or
. to set aside or vary the order due to "fraud" or "facts arising or discovered after it [SS: the order] was made" [R59.06(2)]. These set aside motions are available with respect to both Superior Court and appellate court (ie. Divisional Court and Court of Appeal) orders.
R59.06 Set Aside Motions
Appeals FROM the Superior Court
Orders of Masters, Case Management Masters and Associate Judges
Masters Abolished
Until very recently, the Superior Court had functionaries of limited procedural jurisdiction called 'masters'. In 02 December 2021 [under the "Supporting People and Businesses Act", 2021, S.O. 2021, c. 34 - Bill 13] masters (and case management masters) started to be called "associate judges".
- Interlocutory orders of masters, case management masters or associate judges [Appeal to Superior Court, as of right]
Appeals from such functionaries lay to the Superior Court, as of right [CJA 17(a)]. Appeals to the Superior Court are always to one judge.
The procedures for these appeals are governed by Rule 62.01 - Appeals from Interlocutory Orders and Other Appeals: Procedure on Appeal. This is an exception, as most appeal procedures are draw from R61.
Venue
Unless the court orders otherwise, such appeals shall be brought and heard in the county where the proceeding was commenced or to which it has been transferred [R37.03, R62.01(6)].
Interlocutory Appeals of Associate Judges (formerly Masters)
- Final Orders of masters, case management master or associate judges [to Appeal to Divisional Court, single judge, as of right]
The law allows for appeals of final orders of masters, case management masters and associate judges [CJA 19(1)(c), CJA 21(2)(a)] to a single judge of the Divisional Court, as of right.
The procedures for these appeals are set out in R61 - Appeals to an Appellate Court.
Orders of Judges
- Interlocutory orders [Appeal to Divisional Court, with leave, to three judges]
Appeals of interlocutory orders of a Superior Court judge are to the Divisional Court, with leave, to a panel of the court (three judges) [CJA 19(1)(b), 21(1-2), RCP 62.02(1)].
The procedures for these appeals are set out in R61 - Appeals to an Appellate Court. However, procedures for leave to appeal are set out in R62.02 - Motion for Leave to Appeal.
Interlocutory Appeals of Judges
- Final Orders $50k or less [Appeal to Divisional Court, as of right, to three judges]
Appeals of the following Superior Court final orders are to the Divisional Court, with three judges [CJA 19(1)(a),(1.2), 21(1)]:(a) for a single payment of not more than $50,000, exclusive of costs;
(b) for periodic payments that amount to not more than $50,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order;
(c) dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or
(d) dismissing a claim for an amount that is more than the amount set out in clause (a) or (b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (a) or (b). The procedures for these appeals are set out in R61 - Appeals to an Appellate Court.
$50k - Up or Down?
- Cost Orders associated with Final Orders $50k or less [Appeal to Divisional Court, with leave granted by a Divisional Court panel]
"(W)here the appeal is only as to costs that are in the discretion of the court that made the order for costs", leave of the court to which the appeal is to be taken is required [CJA 133].
The procedures for these appeals are set out in R61 - Appeals to an Appellate Court. However, procedures for leave to appeal are set out in R62.02 - Motion for Leave to Appeal. Leave shall be sought from a panel of the Divisional Court [R62.02(1)].
- Final orders over $50k and Non-Monetary Orders [eg. injunctions, declarations, etc] [Appeal to the Court of Appeal, as of right, to three judges]
Non-Monetary Orders
Respecting money orders, this 'more than $50k' rule applies the same logic as the '$50k or less' provision, immediately above. That is, when the order being considered for appeal does not come under the '$50k or less' rule, it comes under this 'over $50k' rule.
Appeals of Superior Court final orders (over $50k and non-monetary) are to the Court of Appeal [CJA 6(1)(b)], before "not fewer than three judges sitting together, and always by an uneven number of judges" [CJA 7(1)].
Five-Judge or More Panels
The procedures for these appeals are set out in R61 - Appeals to an Appellate Court.
- Cost Orders associated with Final Orders above $50k [Appeal to Court of Appeal, with leave granted by three judges of the Court of Appeal]
"(W)here the appeal is only as to costs that are in the discretion of the court that made the order for costs", leave of the court to which the appeal is to be taken is required [CJA 133(b)].
The Rules of Civil Procedure (RCP) for leave in the Court of Appeal are set out in 61.03.1 - Motion for Leave to Appeal to Court of Appeal. It shall be held in writing "without the attendance of parties or lawyers" [R61.03.1(1)], and before "not fewer than three judges sitting together, and always by an uneven number of judges." [CJA 7(1-3)].Note: Appealing Cost Orders and Leave
This gets trickier. Remember the logic that "you appeal orders, not reasons or decisions"? That means that if you appeal your losing case, that you must also decide whether to appeal the costs order - as well as (or instead of) the 'main' order/s. It seems simple, as CJA 133(b) provides that "where the appeal is only as to costs" then leave is required. That implies that where you don't appeal your 'main' order, that you do require leave to pursue appealing the costs order - but where you 'appeal everything' you don't require leave - as it's sort of thrown in together (which makes efficiency sense). The problem is that courts have held that where the appellant loses their main appeal, that - in order to continue with their costs appeal - they must apply for and have been granted leave for it regardless: McFlow Capital Corp. v. James (Ont CA, 2021), para 50. - Appeals of Judicial Review under JRPA 6(2)
When a judicial review proceeding is conducted in the Superior Court under JRPA 6(2) [(see the JR Guide at s.2 "Procedural Option", 2. "Urgent Option")], appeal is had to the Court of Appeal, with leave of that court [JRPA 6(4)].
JRPA 6(4) - Appeal to Court of Appeal
Appeals from the Divisional CourtAbout the Divisional Court
The Divisional Court is Ontario's administrative appellate court, although it also deals with lower quantum (under $50k) lawsuit appeals. By 'administrative' courts I mean that it deals largely with court appeals from specific administrative tribunals (eg. the Landlord and Tenant Board, the Social Benefits Tribunal and many more), and judicial reviews (JR) under the Judicial Review Procedures Act (JRPA).
CJA 18. Divisional Court
CJA 19. Divisional Court jurisdiction
CJA 20. Place for hearing
CJA 21. Composition of court for hearings
Notice to Profession – Divisional Court (February 18, 2021)
This is the main COVID-era practice direction re scheduling electronic Divisional Court hearings, and filing materials.
Re-Constituting the Court
"The Divisional Court is a branch of the Superior Court [CJA 18(1)]. All judges of the Superior are also judges of the Divisional Court" [CJA 18(3)]. As, well the CJA enables Superior Court judges to act as Court of Appeal judges: "A judge of the Superior Court of Justice is, by virtue of his or her office, a judge of the Court of Appeal and has all the jurisdiction, power and authority of a judge of the Court of Appeal" [CJA 4(2)]. This gives rise to the interesting issue of 're-constituting a court'.
Re-Constituting a Court
Set Asides of Divisional Court Orders- R59.06 Set Aside Motions
In addition to considering an appeal, a party may wish to consider making a R59.06 motion to 'amend, set aside or vary' an order being challenged [under R59.06 of the Rules of Civil Procedure (RCP)] (commonly referred to as a 'set-aside' motion). However, the grounds for such a motion are limited, being restricted to:. an amendment for "an error arising from an accidental slip or omission" or due to "any particular on which the court did not adjudicate" [R59.06(1)], and/or
. to set aside or vary the order due to "fraud" or "facts arising or discovered after it [SS: the order] was made" [R59.06(2)]. These set aside motions are available with respect to both Superior Court and appellate court (ie. Divisional Court and Court of Appeal) orders.
R59.06 Set Aside Motions
- Set Aside of Registrar's Orders or Decisions
"A person affected by an order or decision of the Registrar of the appellate court [SS: here, the Divisional Court] may make a motion to a judge of the appellate court to set it aside or vary it by a notice of motion that is served forthwith after the order or decision comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion" [R61.16(5)].
- Set Aside of Motion Orders in the Divisional Court
There are also 'set aside' provisions for orders made on motions in the Divisional Court [see s.12 'Motions', on the main Appeal page].
Panels
The Divisional Court usually sits with a three judge panel [CJA 21(1)], though there can be specific exceptions where one judge is allowed (ie. Small Claims, final orders of an associate judge or master) [CJA 21(2)]) - and there is a general one-judge exception where "the Chief Justice of the Superior Court of Justice or a judge designated by the Chief Justice is satisfied, from the nature of the issues involved and the necessity for expedition, can and ought to be heard and determined by one judge" [CJA 21(2)(c)].
Combining and Transferring Appeals
The Divisional Court has jurisdiction to hear and determine an appeal that lies to the Superior Court of Justice, if an appeal in the same proceeding lies to and is taken to it [CJA 19(2)]. The Divisional Court may, on motion, transfer an appeal that has already been commenced in the Superior Court of Justice to itself [CJA 19(3)]. As well, there is a general court authority, "(w)here a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer" [CJA 110(1)].
Combining Appeals from Different Courts (+)
Combining Appeals from Same Court
Transferring Appeals
Venue
"An appeal to the Divisional Court shall be heard in the region where the hearing or other process that led to the decision appealed from took place, unless the parties agree otherwise or the Chief Justice of the Superior Court of Justice orders otherwise because it is necessary to do so in the interests of justice" [CJA 20(1)]. Any other proceeding (eg. motions) in the Divisional Court may be brought in any region [CJA 20(2)].
Appeals FROM the Divisional Court- A Divisional Court order "on a question that is not a question of fact alone, with leave of the Court of Appeal" [CJA 6(1)(a)] [an 'order' includes a judgment: CJA 1(1)] [Appeal to the Court of Appeal, with leave from three judges of the Court of Appeal]
This appeal provision applies to both final and interlocutory orders, which - given the leave requirement - makes sense.
The phrase: "on a question that is not a question of fact alone", means errors of law and errors of mixed fact and law, it excludes errors of fact [for these distinctions, see the s.1 'Basics' section in this Appeals Guide].
Appeals from the Divisional Court require leave of the Court of Appeal. Leave to appeal procedures are located at RCP R61.03.1. Such motions for leave are heard by writing, unless "on considering the written materials, the court determines that an oral hearing is warranted" [CJA 61.03.1(1)(15)]. Leave motions heard by a three-judge panel [CJA 7(2-3)].
Appeals - Court of Appeal with Leave [CJA s.6(1)(a)]
- Appeals of Divisional Courts Cost Orders (in relation to the above CJA s.6(1)(a)] orders) [Appeal to the Court of Appeal, with leave from three judges of the Court of Appeal]
Under all of CJA 6(1)(a), 133 and R61.03.1 appealing cost orders in relation to the underlying Divisional Court proceeding will require leave of the Court of Appeal. As well, that would require a three-judge panel [CJA 7(2-3)].
Appeals from the Court of AppealAbout the Court of Appeal
"The Court of Appeal has the jurisdiction conferred on it by this or any other Act, and in the exercise of its jurisdiction has all the powers historically exercised by the Court of Appeal for Ontario" [CJA 2(2)]. As the Court of Appeal (CA) is Ontario's highest court, it's only appeal is to the Supreme Court of Canada.
CJA 3. Composition of court
CJA 4. Assignment of judges from Superior Court of Justice
CJA 5. Powers and duties of Chief Justice
CJA 6 - Court of Appeal jurisdiction
CJA 7. Composition of court
CJA 9. Meeting of judges
Re-Constituting the Court
"The Divisional Court is a branch of the Superior Court [CJA 18(1)]. All judges of the Superior are also judges of the Divisional Court" [CJA 18(3)]. As, well the CJA enables Superior Court judges to act as Court of Appeal judges: "A judge of the Superior Court of Justice is, by virtue of his or her office, a judge of the Court of Appeal and has all the jurisdiction, power and authority of a judge of the Court of Appeal" [CJA 4(2)]. And, "(a) judge of the Court of Appeal is, by virtue of his or her office, a judge of the Superior Court of Justice and has all the jurisdiction, power and authority of a judge of the Superior Court of Justice" [CJA 13(2)].
This gives rise to the interesting issue of 're-constituting a court'.
Re-Constituting a Court
Set Asides of Court of Appeal Orders- R59.06 Set Aside Motions
In addition to considering an appeal, a party may wish to consider making a R59.06 motion to 'amend, set aside or vary' an order being challenged [under R59.06 of the Rules of Civil Procedure (RCP)] (commonly referred to as a 'set-aside' motion). However, the grounds for such a motion are limited, being restricted to:. an amendment for "an error arising from an accidental slip or omission" or due to "any particular on which the court did not adjudicate" [R59.06(1)], and/or
. to set aside or vary the order due to "fraud" or "facts arising or discovered after it [SS: the order] was made" [R59.06(2)]. These set aside motions are available with respect to both Superior Court and appellate court (ie. Divisional Court and Court of Appeal) orders.
R59.06 Set Aside Motions
- Set Aside of Registrar's Orders or Decisions
"A person affected by an order or decision of the Registrar [SS: here, the Court of Appeal] may make a motion to a judge of the appellate court to set it aside or vary it by a notice of motion that is served forthwith after the order or decision comes to the person’s attention and names the first available hearing date that is at least three days after service of the notice of motion" [R61.16(5)].
- Set Aside of Orders from Motions in the Court of Appeal
There are 'set aside' provisions to reverse orders made on motions in the Court of Appeal [see 'Motions', on the main Appeal page].
Combining and Transferring Appeals
The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court, if an appeal in the same proceeding lies to and is taken to it [CJA 6(2)]. The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Court or the Superior Court of Justice to itself [CJA 6(3)]. As well, there is a general court authority, "(w)here a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer" [CJA 110(1)].
Combining Appeals from Different Courts (+)
Combining Appeals from Same Court
Transferring Appeals
Panels
The typical sitting of the Court of appeal is three judges, but can be more than three as long as the number is uneven [CJA 7(1)]. Motions are heard by one judge, except motions [CJA 7(3)]:. to quash an appeal,
. for leave to appeal, and
. "any other motion that is specified by the rules of court". Appeals FROM the Court of Appeal- Main Orders
The only place that an appeal can go from the Court of Appeal order is up to the Supreme Court of Canada. This Appeal Guide does not cover such appeals, although the appellate jurisdiction of the Supreme Court of Canada is located here: Supreme Court Act ss.35-43.
Appeals from TribunalsIntroduction
There are a multitude of administrative statutes that carry with them an administrative appeal right, and a corresponding multitude of administrative tribunals to hear them. Examples of typical administrative decisions are eligibility refusal (eg. denial of an ODSP application), any of a number of license/registration denials or revocations (eg. a driver's license, a motor vehicle dealer's registration and more), and termination and eviction from residential tenancies.
Once these administrative appeals are concluded, they frequently (not always) lead to court appeals (and those mostly to the Divisional Court) - that's where this Court Appeal Guide can be helpful - in part.
But you have to be careful. Usually these administrative topics have 'parent statutes' (for example the parent-statute for Ontario residential landlord and tenant law is the Residential Tenancies Act), and the legislature invariably adds additional and essential court appeal law in the parent statute (and sometimes - just to make it awkward - elsewhere).
So - if you draft and file a court appeal of a tribunal decision without addressing the provisions of the parent-statute you will almost certainly get it wrong. Realistically, you have to 'bottom-out' all the parent-statute (and sometimes more) court appeal provisions. The below section is a start at doing this, but only a start - there's more work to go before it can pretend to be thorough.
Appeals Of Tribunal Interlocutory Orders are Premature | Part 2
Some Tribunal Parent-Statute Divisional Court Appeal ProvisionsNote: Not all administrative tribunals allow for court appeals (eg. the OLRB or the ACRB). When they don't, you should consider whether you have a judicial review (JR) right. - Residential Tenancies Act (RTA) [Landlord and Tenant Board]
Residential Tenancies Act, s.210-211
- Ontario Disability Support Program Act (ODSPA) [Social Benefits Tribunal]
Ontario Disability Support Program Act, s.31
ODSP Act, General Regulation, ss.70-71
- Ontario Works Act (OWA) [Social Benefits Tribunal]
Ontario Works Act, s.36
OW Act, General Regulation, ss.81-82
- Licence Appeal Tribunal Act (LATA) [Licence Appeal Tribunal]
Licence Appeal Tribunal Act , s.11 [you have to scroll down to s.11]
The LATA is sort of a 'miscellaneous' appeal statute. It deals with administrative appeals (and then, sometimes, Divisional court appeals after that) under the following statutes [SS: this list taken at 07 April 2022]:
. Bailiffs Act
. Board of Funeral Services Act
. Building Code Act, 1992
. Cannabis Licence Act, 2018
. Collection and Debt Settlement Services Act
. Condominium Management Services Act, 2015
. Consumer Protection Act, 2002
. Consumer Reporting Act
. Discriminatory Business Practices Act
. Funeral, Burial and Cremation Services Act, 2002
. Gaming Control Act, 1992
. Horse Racing Licence Act, 2015
. Insurance Act
. Liquor Licence and Control Act, 2019
. Motor Vehicle Dealers Act, 2002
. New Home Construction Licensing Act, 2017
. Ontario New Home Warranties Plan Act
. Payday Loans Act, 2008
. Private Career Colleges Act, 2005
. Private Security and Investigative Services Act, 2005
. Real Estate and Business Brokers Act, 2002
. Ticket Sales Act, 2017
. Travel Industry Act, 2002
. Upholstered and Stuffed Articles Act
. Vintners Quality Alliance Act, 1999
LATA jurisdiction can get more complicated. For example the Highway Traffic Act (HTA) has some LAT appeal jurisdiction though not on this list, because it only allows for court appeals to the Superior Court [HTA 50(3)], not the Divisional Court. It's messy.
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