Perfecting an Appeal in Ontario – Basic Steps

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This is the fourth lecture on the subject of appeals in Ontario civil courts. This lecture explains the basic steps required to perfect an appeal.

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 to YouCounsel.

We have so far provided 3 lectures on the subject of Appeals. This is our 4th lecture on this topic. In today’s lecture we will cover some of the basic steps in order to “perfect an appeal” in a civil court in Ontario.

We begin with our usual disclaimer that this lecture is not legal advice. It is only for educational purposes. If you require answers to specific questions that you may have you should contact a lawyer or a paralegal or if you don’t know one, then you should contact the Law Society of Ontario for a referral.

In our previous lectures we have talked about what is an appeal. We have explained the difference between an appeal and a judicial review. We have also explained the difference between an appeal that you can commence by “way of a right” and the appeals that you have to seek the court’s prior permission to commence your appeal. We have explained some of the differences between an interlocutory and a final order which is relevant to where you appeal your case. We have talked about the determination of the appropriate appellate court in your case.  In the previous lecture we have talked about how you commence your appeal.  

Fundamentally we have explained that there are 2 steps: one is the commencement of appeal and 2nd step is the perfection of appeal.  Only after you have perfected an appeal will you be allowed to have your appeal heard and if you have not perfected your appeal then your appeal will not be heard.  It’s an important step. In this step you need to remember about the time lines as usual. (a) If you are not relying on any transcripts of evidence for your appeal, then you have 30 days from the time that you have served and filed your Notice of Appeal to perfect your appeal.  (b) If transcripts are required in your appeal, then once you receive the notice that the evidence has been transcribed, from that time you have 60 days to perfect your appeal.

There are specific documents that you have to serve and file in order to perfect your appeal. And we will discuss each document one by one. You would need to serve and file an appeal book and compendium, an exhibit book, transcripts of evidence, factum and certificate of perfection.  An appeal book and compendium is essentially a document that contains all of the pleadings relevant to your action—Statement of Claim, Statement of Defence, Reply, the Order or the Decision that you are appealing from (a copy of that order or decision), any other procedural documents, any other orders that may have been issued with respect of that case—you need to provide copies of that. Obviously, you need to provide a copy of your Notice of Appeal. If there is a cross appeal, you need to add a copy of that. If there are any supplementary notices of appeal, then those are all included in the appeal book and compendium. Also included in the appeal book and compendium are transcripts of evidence—the excerpts of the transcripts of evidence not the entire transcript, some of the affidavits that you may be referencing in your factum—all of those parts of evidence will go in the appeal book and compendium.

We’re not discussing today all of the contents of an appeal book and compendium.  Those we will cover in a separate lecture but you can review Rule 61.10 to understand what goes in an appeal book and compendium. Once you have the appeal book and compendium ready, you serve it on all relevant parties, then you file 3 copies of the appeal book and compendium with the court, along with the proof of service (along with your affidavit of service) confirming that you have served the appeal book and compendium on all the relevant parties.  If your appeal is being heard by a panel of 5 judges, then you will need to file 5 copies with the court along with the proof of service—otherwise normally it is 3 copies.

2nd document that you have to serve in file is the exhibit book.  As the name implies, exhibit book contains all of the evidence.  It will contain all of the affidavits (if there are affidavit evidence that you are relying on for your appeal) and it will contain all of the transcripts of evidence that you are relying on—the evidence that parties have agreed not to omit for the purposes of the appeal.  All of those will go into an exhibit book.  The details of what is contained in an exhibit book can be found in Rule 61.10.1.  Once you have the exhibit book ready, you serve on all relevant parties; then you file one copy with the court along with the proof of service.  Notice that you don’t need to file 3 or 5 copies only one copy of the exhibit book is sufficient. There are circumstances in which you may not need to prepare an exhibit book and obviously need not file it with the court. One example that comes to my mind is that if your appeal is based on affidavit evidence entirely and that’s all you’re relying on then you can include the affidavit evidence in your appeal book and compendium.  In that situation you don’t need to prepare a separate exhibit book.  You must make sure that you understand in what circumstances you don’t need to prepare and file an exhibit book and make sure that you comply with the Rules in that regard.

Transcripts of evidence: Once you have the transcripts of evidence ready (you have received the transcribed evidence) then you have to serve typed and printed transcripts of evidence on all relevant parties. You also have to serve an electronic version of the transcripts of evidence on all relevant parties. You file one copy of typed and printed transcripts of evidence with the proof of service with the court. You also file the electronic version of the transcripts of evidence with the court.

Factum is the most important document in your appeal.  If you know anything about how the decision on appeals is made, you would know that your skills in oral advocacy have a limited role with respect to your success in your appeal.  Appeals are fundamentally won and lost in the libraries, which is where you sit down and prepare your factum. A factum is a document that contains basically your argument—why should your appeal succeed. It contains the relevant law; it contains the relevant facts and it contains your argument on how those facts are and how the laws are applied to those facts so that you are successful in your appeal.  If your factum is weak, regardless of how good your oral advocacy skills may be, you may not be able to rescue yourself from a bad factum.  A great factum is essential for success on an appeal. What goes in a factum and how it is prepared that is contained in Rule 61.11.  You prepare your factum, you serve a typed or a printed copy of factum on all relevant parties. Then you file 3 copies of your typed and printed factum (or 5 copies if your appeal is being heard by a panel of 5 judges) along with the proof of service. You also need to file an electronic version of the factum with the court.

The last item that you need to prepare, serve and file is a certificate of perfection.  A certification of perfection is essentially a certificate in which you state to the court that all the documents that were needed to be filed for your appeal (to be heard) you have filed those documents with the court and then you provide the contact information of all of the other relevant parties—their names; phone numbers; addresses; names of lawyers; their phone numbers and addresses.  You provide that in the certificate of perfection. You serve the certificate of perfection on all relevant parties and then you file it with proof of service.

Once you have submitted all of these documents with the court and paid the fee for the perfection of your appeal, then your appeal is perfected. You will be receiving a date from the court as regards to when your appeal will be heard.

Again we emphasize that you should carefully review each step that you need to take with respect to perfecting your appeal. Make sure you follow the timelines. With respect to timelines, I do have a comment regarding the perfection of the appeal.  Generally speaking, the timeline for perfecting the appeal is not followed stringently by the court.  If you, for some reason, have delayed perfecting the appeal by a few days it may not be a big deal because the Registrar will still accept your documents for perfection—even after the deadline—as long as your appeal is not dismissed by the Registrar.  But for the Registrar to dismiss your appeal the Registrar will send you a notice in writing and give you a certain time to perfect the appeal. Generally speaking the timeline for perfecting is not that stringent—that is not to say that you should take it lightly.  You should always try to comply with the timelines.  This is just for your knowledge that if you for some reason, are unable to perfect it in the time period that is outlined earlier, you may have some opportunity to still perfect your appeal.  You can also have the consent of all parties regarding some delay with perfecting an appeal.  Once you have that consent that will also allow you to perfect your appeal a bit later.  You also want to make sure that you review the Rules of Civil Procedure, the Practice Directions and the relevant statutes so that your appeal is perfected properly.

Thank-you for watching.

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