How to Proceed with a Civil Appeal

  1. What appeals lie to the Court of Appeal?
  2. What of other possible appeals to the Court of Appeal?
  3. Do I have to have a lawyer?
  4. Do I have an automatic right of appeal to the Court of Appeal?
  5. How do I apply for leave to appeal?
  6. How do I begin an appeal?
  7. What is the deadline to file the notice of appeal?
  8. What if my appeal is from Bankruptcy Court?
  9. What if my time to file an appeal has expired?
  10. What do I do once the notice of appeal has been filed?
  11. What other materials am I required to file?
    a. Appeal book and compendium
    b. Exhibit book
    c. Appellant's Factum
    d. Certificate of perfection
    e. Book of authorities
  12. What will happen if I delay the perfection of the appeal?
  13. What can I do if I cannot perfect the appeal on time?
  14. When will the appeal be heard?
  15. When should the respondent's material be filed?
  16. What if I decide not to continue with the appeal?
  17. List of Forms (http://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/)
    a. FRM 37A - Notice of Motion
    b. FRM 37B - Confirmation of Motion
    c. FRM 61A- Notice of Appeal to An Appellate Court
    d. FRM 61B- General Headings in Proceedings in an Appellate Court
    e. FRM 61C - Appellant’s Certificate Respecting Evidence
    f. FRM 61D - Respondent’s Certificate Respecting Evidence
    g. FRM 61E - Notice of Cross Appeal
    h. FRM 61 F- Supplementary Notice of Appeal or Cross Appeal
    i. FRM 61H - Certificate of Completeness of Appeal Book and Compendium
    j. FRM 61K - Notice of Abandonment of Appeal
    k. FRM 15C - Notice of Intention to Act In Person
    l. FRM 4C - Backsheet (All documents must contain a backsheet in this format)

Civil Appeals

This guide is intended to provide a brief overview with regard to proceeding with an appeal in the Court of Appeal for Ontario. Please note that court administrative staff cannot provide legal advice or complete the documents to be filed on your appeal for you. For more detailed information about civil appeals, please refer to the Rules of Civil Procedure.

1. What appeals lie to the Court of Appeal?

Generally speaking, an appeal lies to the Court of Appeal from:

a) an order of the Divisional Court, on a question that is not a question of fact alone, with leave of the Court of Appeal;
b) a final order of a judge of the Superior Court of Justice, except where the judgment does not exceed $50,000; or
c) a certificate of assessment of costs issued in a proceeding in the Court of Appeal.

2. What of other possible appeals to the Court of Appeal?

Certain civil appeals are governed by other statutes and the rules relating thereto (for example, appeals under the Bankruptcy and Insolvency Act). Please refer to those statutes for guidance as to the procedure on an appeal to the Court of Appeal.

3. Do I have to have a lawyer?

A party may represent himself or herself in almost all circumstances. A solicitor, however, must represent a corporation, unless the court orders otherwise. Even if you are entitled to represent yourself in the Court of Appeal, it is recommended that you seek legal advice if possible, mindful of the fact, for instance, that court staff are not permitted or trained to provide legal advice

4. Do I have an automatic right of appeal to the Court of Appeal?

Not in all cases. In some instances, the appellant must first obtain leave to appeal. An appeal from an order of the Divisional Court, for instance, requires leave to appeal.

5. How do I apply for leave to appeal?

In most civil appeals that require leave to appeal, a notice of motion for leave to appeal must be served within 15 days from the date of the order being appealed and filed within 5 days of service. There is a fee for filing of the notice of motion, payable at the time the notice of motion is submitted for filing. If leave to appeal is granted, a notice of appeal must then be served and filed within seven days.

6. How do I begin an appeal?

An appeal is initiated by serving and filing one copy of a notice of appeal (Form 61A) and one copy of an appellant’s certificate respecting evidence (Form 61C). Proof that copies of both the notice of appeal and the certificate respecting evidence have been served on the respondent(s) must be filed with the Court of Appeal. Proof of service should be in the form of an affidavit of service (Form 16B) indicating when, where and how the documents were served, or by an admission by the party to be served that the document has been served. There is a fee for filing of the notice of appeal, payable at the time the notice of appeal is submitted for filing.

7. What is the deadline to file the notice of appeal?

Usually, the notice of appeal must be served on the respondent(s) within 30 days after the date of the order appealed from. The appellant then has 10 days to file the notice of appeal from the day the respondent(s) was served with the notice of appeal.

8. What if my appeal is from an order pronounced in Bankruptcy Court, for instance?

An appeal from an order made in Bankruptcy Court is processed differently from other appeals. The appellant must serve the notice of appeal and then file it with the Registrar of the Bankruptcy Court within 10 days of the order or decision appealed from. The Registrar of Bankruptcy Court must then send the notice of appeal and all related documents to the Court of Appeal office.

9. What if my time to file an appeal has expired?

You have two options:

a) to attempt to obtain consent from the respondent(s) to late service and/or filing of the notice of appeal. This consent must be in writing, signed by the respondent(s) or (if there is a solicitor of record) by the solicitor of record for the respondent(s). The written consent must accompany the notice of appeal when it is presented for filing;

or

b) to bring a motion returnable before a Judge of the Court of Appeal for an order extending the time for service and/or filing of the notice of appeal. A notice of motion (Form 37A) must be prepared and a copy of the notice must be served upon the respondent(s), and then filed in the office of the Court of Appeal with proof of service at least 7 days before the hearing date of the motion. Please note that a notice of confirmation must be filed not later than 2.00 p.m. three (3) days before the hearing date. There is a fee for filing of the notice of motion, payable at the time the notice of motion is submitted for filing.

10. What do I do once the notice of appeal has been filed?

Once the notice of appeal has been filed, the appellant must now perfect the appeal. In order to perfect the appeal, you must file with the registrar all the documents necessary for the hearing of the appeal along with proof of service of those documents.

If a transcript of oral evidence is necessary for the appeal, the appellant is required to file within 30 days proof that he or she has ordered the transcript of all oral evidence that the appellant (s) and the respondent(s) have not agreed to omit.

(a) What is my deadline for perfection?

In order to perfect an appeal, you must file with the Registrar all the documents necessary for the hearing of the appeal along with proof of service of those documents.

  1. If no transcript of oral evidence is required, the appellant shall perfect the appeal within (30) thirty days after filing the notice of appeal.
  2. If transcript of oral evidence is required, the appellant shall perfect the appeal within (60) sixty days after receiving notice that the transcript of evidence has been transcribed.

(b) What is my deadline for perfection if my appeal is brought under the Child and Family Services Act (CFSA)?

  1. If no transcript of oral evidence is required, the appellant shall perfect the appeal within (14) fourteen days after filing the notice of appeal.
  2. If transcript of oral evidence is required, the time for perfection shall be within (30) thirty days after receiving notice that the evidence has been transcribed.

11. What other materials am I required to file?

The appellant must file the following documents:

a) an appeal book and compendium: 3 copies;
b) an exhibit book: 1 copy;
c) an appellant's factum: 3 typed or printed copies, together with an electronic version of same;
d) the transcript of evidence (if any): 1 typed or printed copy, together with an electronic version of same, unless the court reporter did not prepare an electronic version;

All of these documents must be served on the respondent(s) before they are filed, and proof of service must be filed with the Court of Appeal office when the documents are presented for filing. Once the appeal book and compendium, the exhibit book, the transcript of evidence (if any) and the appellant’s factum have been filed, the appellant must file a certificate of perfection, the final step in perfecting the appeal. There is a fee for perfection of the appeal, payable at the time the certificate of perfection is submitted for filing.

Appeal book and compendium

The appeal book and compendium must be bound front and back in buff covers. The pages of the appeal book and compendium must be consecutively numbered, with numbered tabs arranged in the following order:

a) a table of contents describing each document by its nature and date;
b) a copy of the notice of appeal and or any notice of cross-appeal or supplementary notice of appeal or cross-appeal;
c) a copy of the order or decision appealed from as signed and entered;
d) a copy of the reasons of the court or tribunal appealed from, with a further typed or printed copy if the reasons are handwritten;
e) if an earlier order or decision was the subject of the hearing before the court or tribunal appealed from, a copy of the order or decision, as signed and entered, and a copy of the reasons for it, with a further typed or printed copy if the reasons are handwritten;
f) a copy of the pleadings or notice of application or of any other document that initiated the proceeding or defines the issues in it;
g) a copy of any excerpts from a transcript of evidence that are referred to in the appellant’s factum;
h) a copy of any exhibits that are referred to in the appellant’s factum;
i) a copy of any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum;
j) a copy of the certificates or agreement respecting evidence referred to in rule 61.05;
k) a copy of any order made in respect of the conduct of the appeal; and
l) a certificate (Form 61H) signed by the appellant’s lawyer, or on the lawyer’s behalf by someone he or she has specifically authorized, stating that the contents of the appeal book and compendium are complete and legible.

Exhibit book

The pages of the exhibit book must be consecutively numbered, with numbered tabs arranged in the following order:

a) a table of contents describing each exhibit by its nature, date and exhibit number or letter;
b) any affidavit evidence, including exhibits, that the parties have not agreed to omit;
c) transcripts of evidence used on a motion or application that the parties have not agreed to omit; and

a copy of each exhibit filed at a hearing or marked on an examination that the parties have not agreed to omit, arranged in order by date (or, if there are documents with common characteristics, grouped accordingly in order by date) and not by exhibit number.

Appellant's Factum

The appellant’s factum must be bound front and back in white covers. It must be signed by the appellant’s counsel, or on counsel’s behalf by someone he or she has specifically authorized, or by the self-represented appellant (s). The text shall be printed, typewritten, written or reproduced legibly, with double spaces between the lines and a margin of approximately 40 millimetres on the left hand side. The characters shall be 12 point, with the suggested Times New Roman font if a computer is used, and 10 pitch if a typewriter is used. A factum cannot be filed if it exceeds 30 pages unless a Judge has given permission to file a longer factum. It must also consist of the following:

a) Part I, containing a statement identifying the appellant and the court appealed from and stating the result in that court or tribunal;
b) Part II, containing a concise overview statement describing the nature of the case and of the issues;
c) Part III, containing a concise summary of the facts relevant to the issues on the appeal, with such reference to the transcript of evidence and the exhibits as is necessary;
d) Part IV, containing a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
e) Part V, containing a statement of the order that the Court will be asked to make, including any order for costs;
f) a certificate stating:
i. that an order under subrule 61.09(2) (original record and exhibits) has been obtained or is not required, and
ii. how much time (expressed in hours or fractions of an hour) counsel estimates will be required for his or her oral argument, not including reply;
g) Schedule A, containing a list of the authorities referred to; and
h) Schedule B, containing the text of all relevant portions of statutes, regulations and by-laws.

Certificate of perfection

The certificate of perfection must:

a) state that the appeal book and compendium, exhibit book, transcripts, if any, and appellant’s factum have been filed, and
b) set out, with respect to every party to the appeal and any person entitled by statute or by an order under rule 13.03 (intervention in appeal) to be heard on the appeal, the name, address and telephone number of
i) the party’s or person’s lawyer, or
ii) if the party or person acts in person, the party or person’s name, address for service and telephone number

Relief from compliance re: the appeal book and compendium, the exhibit book, the transcript of oral evidence or the appellant’s factum

If it is necessary to do so in the interest of justice, a judge of the Court of Appeal may give special directions and vary the rules governing the appeal book and compendium, the exhibit book, the transcript of evidence and the appellant’s factum.

Appellant's Book of Authorities

It is of great assistance to the Court of Appeal for the parties to file casebooks containing photocopies of the authorities to which counsel intend to refer on the hearing of the appeal.

The appellant’s book of authorities must be bound front and back in white covers. It should include a tab for each case (either numerical or alphabetical), and should include an index of the authorities and indicate the tab where the authority is reproduced. The particular passages in the cases to which counsel wish to refer should be clearly marked. This can be done by either highlighting the paragraphs referred to, or by placing a side bar along the paragraphs.

The book of authorities should include only the cases to which counsel have referred in the factum filed on the appeal.

The book of authorities should be filed, if possible, with the factum, but if not possible, then not later than Monday of the week preceding the hearing of the appeal. (It is acceptable to file a joint casebook if the parties to the appeal agree to do so.)

12. What will happen if I delay the perfection of the appeal?

If you do not file proof that you have ordered the transcript necessary for your appeal within thirty (30) days after filing your notice of appeal (if there is a transcript of oral evidence to be filed on the appeal), the respondent may file a motion before the Registrar of the Court of Appeal for dismissal of your appeal for delay. If granted the appeal is dismissed with costs fixed at $750.00.

If you do not perfect the appeal within sixty (60) days after receiving notice that the transcript(s) are completed, the respondent may file a motion before the Registrar for dismissal of the appeal for delay. If granted the appeal is dismissed with costs fixed at $750.00.

If the appeal is one for which no transcript of oral evidence is required and you do not perfect the appeal within thirty (30) days (or in the case of an appeal under the Child and Family Services Act (CFSA) – fourteen (14) days) after filing your notice of appeal, the respondent may move before the Registrar for dismissal of the appeal for delay. The Registrar also may take steps to dismiss the appeal for delay in accordance with Rule 61.13.

If one year (or in the case of an appeal under the Child and Family Services Act (CFSA) – six months) pass from the date of filing your notice of appeal and the appeal is still unperfected, the Registrar may take steps to dismiss the appeal for delay with costs of $750.00.

13. What can I do if I am not able to perfect on time?

You have two options:

a) to attempt to obtain consent of the respondent(s) to an extension of time for perfection of the appeal. Such consent must be given in writing, as with consent given to an extension of time for the filing of a notice of appeal; or
b) to bring a motion returnable before a Judge of the Court of Appeal for an order extending the time to perfect the appeal, as with a similar such motion for an extension of time for the filing of a notice of appeal

14. When will the appeal be heard?

Once the appeal is perfected, it is placed on a list of appeals that are ready for hearing, usually within 6 months from the date of perfection. The appeal will then be assigned a hearing date that is dependent upon the nature of the appeal involved. Certain appeals are automatically expedited, for instance, appeals in family law matters, summary judgment appeals, and appeals that may delay the progress of an ongoing proceeding) . These appeals are usually scheduled within 3 – 4 months from the date of perfection. Counsel or self-represented client should advise the Appeals Scheduling Unit of the court by fax (416- 327 6256) that an appeal meets one of these criteria aforementioned.

15. When should the respondent’s material be filed?

The respondent’s factum and compendium should be served and filed within sixty 60 days after service of the appeal book and compendium, exhibit book, transcript of evidence (if any) and appellant’s factum. If an appeal is brought under the Child and Family Services Act (CFSA) , the respondent’s factum and compendium should be served and filed within 30 days after the service of the appeal book and compendium, exhibit book, transcript of evidence (if any) and appellant’s factum.

16. What if I decide not to continue the appeal?

When an appellant chooses to abandon his or her appeal, a notice of abandonment (Form 61K) , should be served on the respondent(s) and filed with proof of service in the Court of Appeal office. Where an appeal is abandoned, the appeal is at an end. The respondent(s) is entitled to the costs of the abandoned appeal unless a judge of the Court of Appeal orders otherwise.

17. These forms are available at http://ontariocourtforms.on.ca/en/

a. FRM 37A - Notice of Motion
b. FRM 37B - Confirmation of Motion
c. FRM 61A - Notice of Appeal to An Appellate Court
d. FRM 61B - General Headings in Proceedings in an Appellate Court
e. FRM 61C - Appellant’s Certificate Respecting Evidence
f. FRM 61D - Respondent’s Certificate Respecting Evidence
g. FRM 61E - Notice of Cross Appeal
h. FRM 61F - Supplementary Notice of Appeal or Cross Appeal
i. FRM 61H - Certificate of Completeness of Appeal Book and Compendium
j. FRM 61K - Notice of Abandonment of Appeal
k. FRM 15C - Notice of Intention to Act In Person
l. FRM 4C - Backsheet (All documents must contain a backsheet in this format)

These forms are meant only as guidelines and only contain the major forms used at the Court of Appeal. For a full listing of all forms under the Rules of Civil Procedure, please review the Forms or visit http://ontariocourtforms.on.ca/en/.

For more information,
Contact the Court of Appeal for Ontario at

Court of Appeal for Ontario
Osgoode Hall
130 Queen Street West
Toronto, Ontario
M5H 2N5

Telephone number: (416) 327-5020
Toll Free at 1-855-718-1756
Facsimile number: (416) 327-5032

Hours of Business:

Open at 8:30 a.m.
Closed at 5:00 p.m.

Last updated June 2007

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