Commencement of Appeal in Ontario – Basic Steps

Share this:

This lecture explains basic steps and their timelines to commence an civil appeal in Ontario.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome everyone!

Today I will talk about some of the basic steps in commencing your appeal in a civil court in Ontario.

We begin with our usual disclaimer that this course 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.

We have presented two lectures on the appeal topic.  We have so far covered some of the basic things for example: what is an appeal? what is the difference between an appeal and a judicial review? The difference between an appeal by “way of right” and where you require the “leave of the court” (the permission of the court) before you can appeal a decision.  What is the difference between an interlocutory and a final order?  We have talked about how you determine which appellate court has the jurisdiction to review your appeal.  If you have not checked out these 2 lectures, I’ll encourage you to review those lectures before you review the steps about the commencement of appeal.

In this lecture we are assuming that you are appealing “by way of right”—in other words you do not require the permission of the court (the leave of the court) to appeal the decision / the order that you are appealing from.  You have the right and what steps do you need to take? There are fundamentally 2 steps. One step we can say is the commencement of appeal and second step is perfection of appeal.  The word “perfection” here is not used in it’s ordinary English meaning. It has specific meaning under the Rules of Civil Procedure.  When we get to that step, I will explain to you what does “perfecting an appeal” mean.  

In this lecture we will only talk about the commencement of appeal.  Step number one not the perfection of appeal, which we will handle in another lecture. For commencing an appeal you have to do 3 things. First of all you have to serve and file a notice of appeal; you have to serve and file a certificate respecting evidence (I will explain what that means); you’ll have to order transcripts of oral evidence and file proof with the  court that you have ordered those transcripts.

Notice of Appeal: For the Notice of Appeal you can complete on either Form 61A or 61A.1. These are 2 forms that are available online. You simply need to google and type in Rules of Civil Procedure forms and you will find all of these forms are available for free.  You can download them. Let me show you what our Notice of Appeal form for the Ontario Court of Appeal looks like.  This is the form Notice of Appeal to the Court of Appeal in Ontario.  I will explain how you fill out this form in a separate lecture.  Let me see if I can find the form for the Divisional Court. This is form 61A.1 for the Divisional Court.  You prepare your Notice of Appeal, then you serve it on all the relevant parties—in this case all of the respondents who have any of their rights being affected by your appeal. They all need to be served.  If there is a defendant that has been noted in default, then that defendant does not need to be served.  You want to make sure that you have served the notice of appeal on all relevant parties.

This needs to be done within 30 days of the making of the order that you are appealing—it is the date that the order was made not when you received it.  If the court had made an order let’s say on November 30th but you received it in the mail on December 4th or 5th—it is the time when the order was made.  Within 30 days of that (November 30th) you have to serve your Notice of Appeal on all relevant parties.  You prepare that and you serve it on all of them.  The other exception to this timeline is that if there is a specific statute or a Rule that you are dealing with that applies to your specific appeal, then whatever timeline is prescribed in that Rule or in that statute may determine when you need to serve the notice of appeal.  Once you have served the notice of appeal then you need to file it within 10 days of the service.  That is 30 days for the service and then within 10 days of the service you have to file a proof of service and the notice of appeal with the court—so that it is confirmed that you have served the Notice of Appeal.

2nd step: You have to serve what is called the Certificate Respecting Evidence and file proof of that service. What is a Certificate of Evidence? This is a certificate that basically sets out what portions of evidence that you will be relying on—that you believe are required for the court to determine the appeal.  There is again a Form 61C that he you can use to prepare that certificate. This is what a Certificate Respecting Evidence looks like.  I will explain how you fill out that certificate in another lecture.  Here is a filled out certificate. Now you serve it on all relevant parties—these are the same parties that you have served your Notice of Appeal on.  You have to do so within 30 days of the making of the order that you’re appealing from.  The same timeline as that for the service of the Notice of Appeal and then you have to file it with the court along with a notice of appeal and you have to provide the proof of service i.e., an affidavit that you have actually served the Certificate Respecting Evidence on all the relevant parties.

Now there is an alternative to the Certificate Respecting Evidence which is called Agreement Respecting Evidence. Either, you can serve and file a Certificate Respecting Evidence or you can consult with the other parties (you can talk to them) and all of you can make an agreement as to what evidence will be presented to the appellate court.  This step is instead of the certificate Respecting Evidence—if you agree with all the parties what evidence will be presented to the appellate court, then you don’t need to file a Certificate Respecting Evidence. You have to make that agreement within 30 days of the service of notice of appeal—whenever you serve the Notice to Appeal, within 30 days if you can reach an agreement with the parties about the evidence then that’s that.

3rd step: is about transcripts. First of all you have to order transcripts of oral evidence. At trial there may have been oral evidence that was presented by parties—by their witnesses and that evidence is recorded in the court process.  For you to rely on that evidence or use that evidence in an appellate level you will have to order transcripts.  You cannot bring those witnesses back. Remember that there is no oral evidence provided in the appellate level—unless you have some permission from the court. But, ordinarily, you don’t provide further oral evidence or even repeat the oral evidence. You have to obtain transcripts of the oral evidence that was presented earlier and then you rely / use that at your appeal. To do so, you have to order transcripts from the Registrar of the court.  Remember that you only order transcripts for the evidence that you and the parties have agreed not to admit.  You don’t provide 10 transcripts of all of the oral evidence. You’re only obtaining evidence (oral evidence) that you have agreed not to admit. The parts of the oral evidence that parties have said we don’t need it for the purposes of appeal—you don’t need transcripts.  You have ordered the transcripts and you need to file some proof in an affidavit (that you actually have ordered the transcripts) and you have to do so within 30 days of the filing of the Notice of Appeal.  The day you filed the Notice of Appeal with the court—you have 30 days from that time to file your proof that the transcripts have been ordered.

If your earlier case was decided purely on affidavit evidence (that is possible) and there was no oral testimony given, then, you won’t need to order transcripts—because there was no oral evidence that you need to produce to the appellate court.  Some of the other things that you want to note in the commencement of appeal process is that if you order transcripts that were unnecessary; if you use evidence that was unnecessary for the appeal purposes the court may order costs against you because now you’re wasting the court’s time. You are providing evidence that was not required for the specific appeal issues before the court. You want to remember from my earlier lectures that an appeal is not a rehearing; it is a review of the errors made by the judge / the earlier decision-maker. It is not a retrial. You are only focused on the errors and how do you present your case on appeal to the appellate court.  It is not that you are required to provide all of the evidence; you only need to provide evidence that deals with the specific appeal issue that you have presented.

Second point you want to note—if you wish to amend your Notice of Appeal you can do so without seeking leave from the court / without asking court’s permission—as long as you do it before you “perfect the appeal”. This is done by serving what’s called a supplementary notice of appeal. You prepare it; you serve it; you file it before the perfection of the appeal and you’ll be fine.  Finally, you want to remember that whatever you have stated in your Notice of Appeal—those are your grounds of appeal and your arguments will be limited to those grounds.  You cannot add stuff at the appellate level obviously without the permission of the court.  You want to be careful about what you are asking in your Notice of Appeal. What are the grounds? So that you know that the arguments you will be presenting at the appeal would be relevant for the court.

You want to carefully review each step.  I need not point that out. You want to make sure that you follow all the timelines. Please, please, please review the Rules of Civil Procedure, Courts of Justice Act, Practice Directions and any other relevant legislation.  Every time you take a step in the appeal you want to review this to make sure that you are actually following all the requirements. In our next lecture we’ll talk about “perfecting the appeal” and then we’ll go take it further from there.

Thank-you for watching.

Share this:

Comments are closed.