This guide is intended to provide a brief overview with regard to proceeding with a motion for leave to 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.
Generally speaking, leave to appeal is required in the Court of Appeal from:
Certain civil appeals are governed by other statutes and the rules relating thereto (for example, appeals brought under the Arbitration Act, Bankruptcy and Insolvency Act, Companies’ Creditors and Arrangement Act). Please refer to those statutes for guidance as to the procedure on an appeal or motion for leave to appeal to the Court of Appeal.
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.
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.The Courts of Justice Act, other applicable statutes and the Rules of Civil Procedure should be reviewed to determine whether a motion for leave to appeal is required.
Where an appeal requires the leave of that Court, the motion for leave shall be heard in writing without the attendance of parties or lawyer. A panel of Judges will make a decision.
A motion for leave to appeal is initiated by serving and filing one copy of a notice of motion for leave to appeal (Form 37A with necessary modifications).The notice of motion for leave to appeal shall state as the proposed method of hearing that the court will hear the motion in writing, 36 days after service of the moving party’s motion record, factum and transcripts, if any, or on the filing of the moving party’s reply factum, if any, whichever is earlier.Proof that the notice of motion has been served on the respondent(s) must be filed with the Court at the time of filing. Proof of service should be in the form of an affidavit of service (Form 16B) indicating when, to whom, where and how the documents were served.There is a fee for filing of the notice of motion, payable at the time the notice of motion is submitted for filing.
In 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 with the Court of Appeal (exceptions may exist for appeals brought under the Bankruptcy and Insolvency Act and the Companies’ Creditors and Arrangement Act; please refer to those rules for the deadlines).
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 where the proceedings commenced within 10 days of the order or decision appealed from. In certain cases the notice of appeal must include the application for leave to appeal. Please refer to the Bankruptcy and Insolvency Act to determine this. The Registrar of Bankruptcy Court where the proceedings commenced must then send the notice of appeal and all related documents to the Court of Appeal office.
An appeal under the Companies’ Creditors and Arrangement Act is processed differently from other appeals. Under this act leave to appeal can be obtained by a single judge or a panel. A notice of motion for leave to appeal under this act must be served within 21 days from the date of the order being appealed.*A panel motion follows Rule 61.03 (1) and is heard in writing without the attendance of parties or lawyer. A decision will be made by a panel of Judges.*A single judge motion follows Rule 37 and a notice of motion (Form 37A) is served upon the respondent(s), and then filed in the office of the Court of Appeal with proof of service at least 7 business days before the hearing date of the motion. A date is chosen by the moving party/ies.
You have two options:
Once the notice of motion for leave to appeal has been filed, the moving party must now serve and file with the registrar all the documents necessary for the considering of the motion along with proof of service of those documents.
The moving party shall file with proof of service within 30 days after the filing of the notice of motion for leave to appeal:
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 motion record and the factum have been filed, the motion is considered perfected.
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 moving party(s) motion record and the moving party(s) factum.
If you do not file all the required documents in accordance with the rules, the respondent may file a motion before the Registrar, on ten (10) days notice to dismiss the motion for leave to appeal for delay. If granted the appeal is dismissed with costs fixed at $750.00. If the moving party/ies materials have not been filed within sixty (60) days of filing the notice of motion for leave to appeal, the Registrar may take steps to dismiss the motion for delay with costs of $750.00.
The responding party shall serve and file with proof of service within 25 days after service of the moving party/ies’ motion record and other documents: Three (3) copies of the factum, and of the motion record, if any, and may file three (3) copies of a book of authorities, if any.
The moving party may serve a reply factum to address any new issues raised in the responding party’s factum. The factum shall contain consecutively numbered paragraphs setting out the moving party’s position on the issue, followed by a concise statement of the law and authorities relating to it. The moving party shall file three (3) copies of the reply factum with proof of service within ten (10) days after the service of the responding party’s factum.
Thirty-six (36) days after service of the moving party’s motion record and factum, and transcripts, if any, or on the filing of the moving party’s reply factum, if any, whichever is earlier, the motion shall be submitted to the court for consideration.These appeals are usually considered in writing unless the court orders an oral hearing and then the Appeal Scheduling Unit shall fix a date for it.
When the moving party/ies choose(s) to abandon his/her/their motion for leave to 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 a motion is abandoned, the motion is at an end. The respondent(s) is/are entitled to the costs of the abandoned motion unless a judge of the Court of Appeal orders otherwise.
If leave to appeal is granted, a notice of appeal must then be served and filed within seven (7) business days, at the office of the Registrar at the Court of Appeal for Ontario.
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/rules-of-civil-procedure-forms/
For more information contact the Court of Appeal for Ontario at:
Court of Appeal for Ontario
130 Queen Street West
Toronto, ON M5H 2N5
Telephone number: (416) 327-5020
Toll Free: 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 April 2021