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Appeals - Leave to Appeal - R62.02 Interlocutory Leave

The Rules of Civil Procedure has two main sets of leave to appeal procedures, the main one under R61 [R61.03 (Divisional Court) and 61.03.1 (Court of appeal)], and another - less frequent - under R62.02 (Interlocutory Orders). This page about the latter.

. D.S. v. R.C.

In D.S. v. R.C. (Ont Div Ct, 2026) the Ontario Divisional Court considered the test for leave to appeal a family law interlocutory order [under R62.02(4)], this in a stay pending leave to appeal context:

(i) Requirements for Leave to Appeal

[7] With respect to the merits of the case, the request is for a stay pending a motion for leave to appeal, so it is the merits of the motion for leave that must be considered. The test for obtaining leave to appeal an interlocutory order is stringent. Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that the party seeking leave demonstrate either (1) the existence of conflicting decisions with respect to the legal principles at issue which make granting leave desirable; or (2) that there is good reason to doubt the correctness of the order in question and the proposed appeal involves issues of such importance that leave should be granted.

(ii) Conflicting Decisions

[8] The moving party submits that the first prong of the test is met, relying on four decisions said to conflict with the motion judge’s ruling: Rouse v. Howard, 2022 ONCJ 23, J.W.T. v. S.E.T., 2023 ONSC 977, M.M. v. W.A.K, 2022 ONSC 4580 and Soucy v. Chan, 2022 ONSC 3911. All four involve unsuccessful motions by one parent to have a child receive a COVID-19 vaccination against the wishes of the other parent. One of the decisions was reversed on appeal, which is not mentioned in the motion materials: S.E.T. v. J.W.T., 2023 ONSC 5416 (Div. Ct.), 95 R.F.L. (8th) 198. Two of them appear to be based, at least in part, on the court’s refusal to take judicial notice of information from governmental agencies about the safety and efficacy of the vaccines: M.M., at paras. 38-43; Soucy, at para. 22. The correctness of those conclusions must be assessed in light of subsequent caselaw: J.N. v. C.G., 2023 ONCA 77, 477 D.L.R. (4th) 699, at paras. 29-31; A.V. v. C.V., 2023 ONSC 1634 (Div. Ct.), 91 R.F.L. (8th) 473, at para. 6; Spencer v. Spencer, 2023 ONSC 1633 (Div Ct.), 92 R.F.L. (8th) 486, at para. 11. In any event, all of these decisions turned on their particular facts, and are therefore not “conflicting decisions with respect to the legal principles at issue.”

(iii) Reason to Doubt the Correctness of the Decision

[9] With respect to the second prong, the motion judge’s decision was based on factual conclusions. She found that there was a risk of harm to M. if the treatment was not administered and that it was therefore in her best interests to make the order being sought. This conclusion was supported by the evidence and does not reflect any palpable and overriding error, the standard the moving party would have to meet to successfully appeal the findings: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10.

[10] The moving party also submits that the order at issue is “in contravention of ss. 4 and 10 of the Health Care and Consent Act, 1996, S.O. 1996, c. 2 [HCCA]” because when M. was asked by Dr. Thassanapaff whether she wanted to prevent the development of certain symptoms by getting “shots,” she said “no.” The applicability of the those sections of the HCCA would depend on the extent to which eight-year-old M. has “the intellectual capacity and sophistication to understand the information relevant to making the decision and to appreciate the potential consequences”: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, at para. 96; A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at paras. 68-71. In any event, the issue before Fiamengo J. was about which parent can make medical treatment decisions, not whether such decisions should be unilaterally made by M.

[11] Based on the foregoing, it is in my view unlikely that leave to appeal this interim order would be granted, so the moving party has not established that there are serious issues to be determined on the motion for leave.

. Diallo v. Bah

In Diallo v. Bah (Ont Divisional Ct, 2025) the Divisional Court grants a stay with respect to an interim order "permitting the respondent mother to relocate with the parties' two young children to Winnipeg, pending final determination of the issue".

Here the court considers leave to appeal from interlocutory orders [R62.02(4)]:

[19] The test for granting leave to appeal an interlocutory order is set out at r.62.02(4) as follows:

Leave to appeal from an interlocutory order shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel's opinion, leave to appeal should be granted.

. Alessandro v. Briggs

In Alessandro v. Briggs (Div Court, 2024) the Divisional Court considers the R62.02(4) [Appeals from Interlocutory Orders and Other Appeals - Grounds on Which Leave May Be Granted] test for leave to appeal an interlocutory order:

[5] Having considered all the written and oral submissions, we decline to grant leave. This proposed appeal does not meet the requirements for leave to appeal under r. 62.02(4) of the Rules of Civil Procedure. There does not appear to be a conflicting decision and in any event we do not find it desirable to grant leave to appeal. Further, there is no good reason to doubt the correctness of the Decision. In considering the grounds for appeal, the Decision shows the application of the correct legal principles and no basis to interfere with the exercise of discretion declining the motion. The proposed appeal does not have merit. As a result, even if this Court did have jurisdiction, we would dismiss the appeal.

. Mehedi v. Tamlin

In Mehedi v. Tamlin (Div Court, 2023) the Divisional Court mentions [at para 7] the R62.02(4) grounds for leave to appeal an interlocutory order to the Divisional Court, which reads:

(4) Leave to appeal from an interlocutory order shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted.

. Huggins v Hayhurst

In Huggins v Hayhurst (Div Court, 2023) the Divisional Court considers the leave to appeal test under R62.02(4) [interlocutory orders to Divisional Court]:

[4] While we have the discretion to grant leave to appeal even at this stage, we would not do so. The test for leave in r. 62.02(4) of the Rules of Civil Procedure is a stringent one. Leave may be granted only where there is a conflicting decision by another judge in Ontario and the panel is of the opinion that leave should therefore be granted or where there is good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that the panel believes leave should be granted.

. Efthymiadis v. Universal Protection Service of Canada Corp.

In Efthymiadis v. Universal Protection Service of Canada Corp. (Div Court, 2022) the Divisional Court considered the test for extending time for a leave to appeal motion, here from an interlocutory order [R62.02(4)]:

[4] Rule 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that where leave to appeal to the Divisional Court is required, the notice of motion for leave must be served within 15 days of the making of the order from which leave to appeal is sought. Pursuant to Rule 3.02 of the Rules, the court may exercise its discretion to extend the time for service of a notice of motion for leave to appeal.

[5] The test that the moving party must meet for an extension of time to file a notice of appeal is well-settled. In deciding whether to exercise its discretion to grant an extension of time, the court will consider the following factors:

(a) Whether the Appellant formed an intention to appeal within the relevant period;

(b) The length of the delay and explanation for the delay;

(c) Any prejudice to the Respondent;

(d) The merits of the appeal; and

(e) Whether “the justice of the case” requires it.

Heliotrope Investment Corp. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.

[6] The Court of Appeal has further held that while courts consider different factors, the governing principle is whether the “justice of the case” requires than an extension be given: Heliotrope Investment, at para. 25.

[7] On a motion to extend the time to seek leave to appeal, the same test is applied. The court must consider the merits of the motion for leave to appeal, as opposed to the merits of the appeal itself: Samuels v. Canada (Attorney General), 2016 ONSC 6706, at para. 20.

[8] Rule 62.02(4) states that “leave to appeal from an interlocutory order shall not be granted unless”:

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted.

. Justice for Children and Youth v. J.G.

In Justice for Children and Youth v. J.G. (Div Ct, 2020) the Divisional Court considered whether leave to appeal should be granted, if the order was interlocutory:

[37] In any event, if we had concluded that the order was interlocutory, we would have granted leave to appeal pursuant to the test in Rule 62.02(4)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. There is good reason to doubt the correctness of the order and the underlying issue – the right of a child to consult with counsel – is of general importance.[4] It is for this reason that we do not accept counsel for the father’s argument that leave should not be granted given this Court’s recent decision in Lokhandwala v. Khan.[5] In that case, this court stated:

Under either branch of the test under R.60.02(04) [SS: should be R62.02(4)], the moving party must show an issue that rises beyond the interim interests of the particular litigants: for example, are there questions of broad significance or of general application that warrant resolution by a higher court because they affect the development of the law and the administration of justice: Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 OR (3d) 282 (Gen. Div.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 OR (2d) 110 (Div. Ct.). Further, even where there is an issue of “importance”, leave will still not usually be granted where that issue will still be available for appellate adjudication after trial: Silver v. Imax (2011) ONSC 19035, paras. 46 and 55.

[38] The issue on this appeal is of broad significance in that it affects the administration of justice. Depriving a young person of the ability to seek and receive legal advice from a lawyer is a profound derogation from that young person’s rights.