Show Notes:

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Lecture Slides:

Welcome everyone.

In this lecture we will cover some basic steps regarding an appeal process under the Rules of Civil Procedure in Ontario.

We begin with our usual disclaimer that this lecture is only for educational purposes.  It is not legal advice.  If you have any specific questions regarding your issues, you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What is an appeal?  You are faced with a decision, in our judicial system, where you disagree with the decision.  You would like to challenge that.  Essentially that’s what an appeal is about. You want to understand that an appeal is different from a judicial review.  We have a previous lecture on this topic which explains the difference between both of these mechanisms—appeal and judicial review.   Both are appellate processes but their processes; their procedures are fundamentally different. They are complementary processes and you need to understand the difference between judicial review and appeal if you would like to dispute a decision. You also need to understand that there is no automatic right of appeal in Canadian law.

What this means is that if you wish to dispute the decision in our judicial system, you need to find the right to appeal in a specific statute. If you can’t find that right, then you are not able to appeal that decision. You also want to be clear that the appeal is not a rehearing; it is not a situation where you are presenting your entire case from scratch with all of the witnesses and all of the evidence to the appellate court. That’s not what an appeal is. It is not a rehearing.  On an appeal there are no witnesses—you simply are arguing on the basis of evidence that has already been presented at the lower court.  If you need transcripts of evidence you will get those and whatever you need. But your reliance is on the evidence that has already been provided.  There are some circumstances in which the appellate court may allow new evidence but that is rare—it not a rehearing—it is simply that you are challenging a decision to the Court of Appeal or Divisional Court and then arguing why the decision was wrong (that you are disputing).

In this process step, number one: that you need to figure out is whether you are dealing with an appeal or judicial review.  If you don’t know the difference, I suggest you check out our previous lecture and figure out whether you need to appeal or you need to apply for a judicial review of the decision that you wish to challenge.

Step number 2: you need to determine whether you have a right to appeal or you need to seek permission to appeal.  And they are two different things.  Remember, I said earlier that you have no automatic right of appeal it must be found in statute. Once you find that statute, depending upon your case, the statute may say that you can simply appeal the decision which is called “appeal as of right” or you have to ask permission from the appellate court to appeal that decision.  Before you appeal it you have to seek permission and it will depend upon the statute.  You need to determine whether (a) you have a right of appeal under that statute or (b) you need to seek permission from the appellate court because if you don’t seek permission or if you are not granted permission you will not be allowed to appeal that particular decision.

Step number 3: you need to obviously figure out what is the appellate court where you can appeal your decision and this is not always straightforward. It depends upon the specific order that you are appealing. Is that order a final order? Or, is that an interlocutory order?

What is a final order? And, what is an interlocutory order? A Final Order generally ends the litigation if not appealed—but not always.  That’s where the complication arises.  In most cases a final order ends the dispute between the parties completely.  An example of that could be an order made on a motion for summary judgment—where the judge has granted a summary judgment motion and may have dismissed a claim.  In that case, if you were the plaintiff and you had commenced a court action for breach of contract, for example, against a defendant and defendant brought a motion for summary judgment and at that motion the judge decided that yes, you have no claim and dismisses your claim in its entirety—then that is a Final Order.  There is a different way to appeal final orders as opposed to an interlocutory order. 

An Interlocutory Order, as it suggests by its name, does not determine the real disputes between the parties; it does not determine the essential substance of the dispute between the parties—which is why it is interlocutory. In the example of the breach of contract case that I mentioned (in the example of the final order)—you brought a motion within your case where you asked the court that the defendant had not produced all of the relevant documents in its possession and you wanted the court to order the defendant to produce those documents.  The decision of the judge on that specific motion is interlocutory because it is not deciding the real dispute—which is the breach of contract between the parties—it is dealing with a subsidiary or an incidental matter in that case but not the essential elements of that case.  So it is called an Interlocutory Order.

Now you want to keep in mind that the determination of whether an order is final or interlocutory is not always easy. You will find that seasoned lawyers (senior lawyers) may disagree on whether a specific order is final or interlocutory.  You will find cases where judges have disagreed on whether a specific order was final or interlocutory.  If you are faced with this difficult decision to determine whether an order being challenged is final or interlocutory and you cannot understand it just keep in mind that you’re not the only one with that problem.

Step Number 4: Once you have figured out whether you have an appeal by “way of right” or you “need to seek the appeal” and you have figured out in which court you are going to appeal the decision or the Order, you need to figure out timelines.  Timelines are crucial under Ontario Rules of Civil Procedure.  You will like to make sure that you read and understand Rules 61.01 to 63.03—which essentially deal with the appeal process in Ontario Courts.  You have to determine what is the timeline to serve your Notice of Appeal (if you are allowed to appeal by way of right).  For example, if you are appealing to the Ontario Court of Appeal, you generally have 30 days to serve and file your Notice of Appeal.  You need to determine if you have to seek leave to appeal—what is the time line to do that?  In case of Ontario Court of Appeal you would have 15 days from the day when the order was issued to seek leave to appeal.  These timelines are important.

You also need to determine, what is the timeline to “perfect an appeal”.  Perfecting an appeal means that you have to take additional steps after you have served your Notice of Appeal or after you have been given leave to appeal before your appeal could be heard.  Those steps are called perfecting the appeal.  There are specific timelines with regards to those steps. You want to make sure that you have absolute clarity on what those timelines are. 

For you to figure out all of these steps, it is essential that you review the relevant legislation.  What it means is that you must review the legislation that is dealing with the subject matter of your underlying case.  For example, if you’re dealing with a discrimination matter under Human Rights Code, you want to make sure that you read the appellate sections or appellate clauses in the Human Rights Code that allow or disallow or relate to the process of appealing a decision of the Human Rights Tribunal of Ontario.

Or it could be another legislation that you may be dealing with or you could be dealing with a dispute where no legislation may apply.  For example, if you have a straightforward breach of contract case in which there is no application of a specific statute and you are only seeking remedies under common law, then this is a scenario where there is no specific statute that deals with the subject matter of your case.  In that case you want to make sure that you at least review the Courts of Justice Act because if there is no other statute that gives you the right of appeal then you must find that right of appeal in the Courts of Justice Act, which covers all kinds of scenarios.  You need to review that.  You want to make sure that you review the Rules of Civil Procedure.  I have mentioned to you that Rules 61.01 to 63.03 are very important. You must review the Practice Directions.

Practice Directions basically explain and further modify the Rules of Civil Procedure.  They are not contradictory to the Rules but they explain further processes adopted by a specific court. I’ve given a link to the Court of Appeal of Ontario’s Practice Directions: (http://www.ontariocourts.ca/coa/en/info/civfam/civil.htm#3)

If you are appealing to the Court of Appeal of Ontario, you must review the practice directions here before you can take any steps in your appeal because these reviews will allow you to determine what you need to do to make sure that your appeal is heard.

Appeals are complicated; the procedures are complicated.  It requires a lot of research and homework on your part to make sure that you get the procedure right. You want to make sure that you review the legislations carefully. You review the Rules of Civil Procedure carefully and the Practice Directions.

Now appellate process has various steps: notice of appeal; seeking leave to appeal; how do you perfect an appeal—all of these things and what we’ll try to do in our future lectures is that we will deal with each subcategory (sub issue) one by one so that we can give you a clear picture of how to proceed with different steps to make sure that your appeal is pleaded and set out proper.

Thank-you for watching.