How to Proceed with a Motion for Leave to Appeal

Motion For Leave to Appeal

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.

1. What matters require leave to appeal to the Court of Appeal?

Generally speaking, leave to appeal is required in the Court of Appeal from:

  1. an order of the Divisional Court, that finally determines an appeal in that court;
  2. a cost decision from a final order of a judge of the Superior Court of Justice, except where the judgment on the case does not exceed $50,000;
  3. an order of a court where the governing statute requires leave to appeal.

2. What are other possible motions for leave to appeal to the Court of Appeal?

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.

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.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.

5. How will my motion proceed?

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.

6. How do I begin a motion for leave to appeal?

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.

7. What is the deadline to file the notice a motion for leave to appeal?

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).

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 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.

9. What if my appeal is from an order made under the Companies’ Creditors and Arrangement Act?

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.

10. What if my time to file a motion for leave to appeal has expired?

You have two options:

  1. to attempt to obtain consent from the respondent(s) for late service and/or filing of the notice of motion. 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 motion when it is presented for filing; or
  2. 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.

11. What do I do once the notice of motion for leave to appeal has been filed?

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.

12. What materials am I required to file? What is my deadline?

The moving party shall file with proof of service within 30 days after the filing of the notice of motion for leave to appeal:

  • Three (3) copies of the motion record
  • Three (3) copies of the Factum
  • Three (3) copies of the transcripts, if any
  • May file three (3) copies of a book of authorities, if any

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.

  1. Moving Party Motion Record
    The motion record must be bound with a light blue back page. The pages of the motion record must be consecutively numbered, with numbered tabs arranged in the following order:

    1. a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
    2. a copy of the notice of motion;
    3. a copy of the order or decision from which leave to appeal is sought as signed and entered;
    4. a copy of the reasons of the court or tribunal from which leave is sought, with a further typed or printed copy if the reasons are handwritten;
      1. a copy of any order or decision that was the subject of the hearing before the court or tribunal from which leave to appeal is required,
      2. a copy of any reasons for the order or decision referred to above in (i), with a further typed or printed copy if the reasons are handwritten,
    5. a copy of all affidavits and other material used before the court or tribunal from which leave to appeal is sought,
    6. a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves, and
    7. a copy of any other material in the court file that is necessary for the hearing of the motion.
  2. Moving Party Factum
    The moving party(s) factum must be bound front and back in white covers. It must be signed by the counsel or on counsel’s behalf by someone he or she has specifically authorized, or by the self-represented party(s). The text shall be printed, typewritten, written or reproduced legibly, with double spaces between the lines and a margin of approximately 40 millimeters 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:

    • Part I, containing a statement identifying the moving party and the court appealed from and stating the result in that court or tribunal;
    • Part II, containing a concise summary of the facts relevant to the issues on the proposed appeal, with such reference to the evidence by page and line as is necessary;
    • Part III, containing the specific questions that it is proposed the court should answer if leave to appeal is granted;
    • Part IV, containing a statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue.
    • Schedule A, containing a list of the authorities referred to; and
    • Schedule B, containing the text of all relevant portions of statutes, regulations and by-laws.
  3. Transcripts
    The moving party may file the relevant transcripts of evidence, if they are not included in the motion record.
  4. Moving Party’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 mentioned in the factum. The moving party’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 located. The particular passages in the cases to which the factum refers to should be clearly marked. This can be done by highlighting, placing a side bar along the paragraph, or underlining the sections in the paragraphs that are being referred to. 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 date for consideration of the motion for leave to appeal. (It is acceptable to file a joint casebook if the parties to the motion agree to do so.)

13. Relief from compliance re: the moving party motion record or the moving party 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 moving party(s) motion record and the moving party(s) factum.

14. What will happen if I delay the filing of the motion for leave to appeal material?

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.

15. What can I do if I am not able to file my material on time?

You have two options:

  1. to attempt to obtain consent of the respondent(s) to an extension of time for perfection of the motion. Such consent must be given in writing; or
  2. to bring a motion returnable before a Judge of the Court of Appeal for an order extending the time to perfect the motion.

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

The responding party shall should 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.

17. Moving party reply factum

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.

18. When will the motion for leave to appeal be considered?

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.

19. What if I decide not to continue the motion for leave to appeal?

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.

20. What if my motion for leave to appeal is granted?

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.

21. These forms are available at http://ontariocourtforms.on.ca/en/rules-of-civil-procedure-forms/

  a. FRM 37A – Notice of Motion

  b. FRM 61A- Notice of Appeal to An Appellate Court

  c. FRM 61B- General Headings in Proceedings in an Appellate Court

  d. FRM 61C – Appellant’s Certificate Respecting Evidence

  e. FRM 61K – Notice of Abandonment of Appeal

  f. FRM 15C – Notice of Intention to Act In Person

  g. 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/rules-of-civil-procedure-forms/

For more information contact the Court of Appeal for Ontario at:

Court of Appeal for Ontario
Osgoode Hall
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

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