Frequently Asked Questions and Terms

The following questions and answers and key terms are intended to help self-represented litigants and members of the legal profession understand procedures in the Court of Appeal for Ontario. The material does not constitute legal advice and is provided for informational purposes only. Parties should read this material together with the rules and practice directions that apply to proceedings in the Court of Appeal.  

QUESTIONS AND ANSWERS 

The following are some frequently asked questions and answers about how to proceed in the Court of Appeal. In addition to reviewing the questions below, parties are encouraged to review the “How to Proceed in the Court” guides 

What is the Court of Appeal for Ontario?

The Court of Appeal for Ontario is Ontario’s highest court. It is located at Osgoode Hall, 130 Queen Street West, Toronto, Ontario.

The Court of Appeal hears both civil and criminal appeals from decisions of Ontario’s two trial courts, the Superior Court of Justice (including the Divisional Court) and the Ontario Court of Justice. It also hears appeals from the Ontario Review Board.

What is the role of the Court of Appeal?

An appeal in the Court of Appeal for Ontario is not a re-hearing of a case. In an appeal, the person who lost in the trial court argues that the judge made a mistake. If you are bringing an appeal to the Court of Appeal, it is important to identify the mistake that you think the judge has made.

The Court of Appeal cannot change another court’s decision simply because the judges disagree with it. The trial court judge is entitled to hear the evidence and come to their own decision. The Court of Appeal may only change that decision if the trial court made a mistake about the law, or significantly misunderstood the evidence.

The Court of Appeal can dismiss the appeal (that is, it can confirm the decision of the trial court), allow the appeal and order a new trial, or allow the appeal and change the order made by the trial court. 

What type of appeals does the Court of Appeal hear?

The Court of Appeal hears both civil and criminal appeals.

Civil appeals deal with subject areas such as commercial disputes, property disputes, family disputes, labour and employment disputes, and bankruptcies and corporate re-organizations. The Court is regularly called upon to consider the fundamental rights of Ontarians arising out of the Canadian Charter of Rights and Freedoms. It also hears appeals involving the review of the decisions of provincial tribunals and administrative action.

Criminal appeals involve a consideration of whether an acquittal or conviction reflects an error in law or is supported by the evidence, and/or whether a sentence is appropriate in the circumstances. In addition to appeals under the Criminal Code, the Youth Criminal Justice Act, and other federal criminal legislation, the Court also deals with appeals from convictions, acquittals and sentences under provincial regulatory legislation, like highway traffic laws, environmental protection laws, and workplace safety laws. 

What happens at an appeal hearing at the Court of Appeal?

For most appeals, a panel of three judges hears the appeal. In exceptional situations, the Court may convene a panel of five judges.

The judges at the hearing will already be familiar with the matters in dispute. Before the hearing, they will review the written argument in the parties’ factums and will review the record of the trial court proceedings.

At the hearing, the judges hear oral arguments from the parties involved in the case. These arguments are about the law and how it is to be applied to the evidence as outlined in the factums. The appellant goes first, and the respondent follows. The appellant then has a right to reply. The judges will often ask questions during the hearing.

If the Court of Appeal orders a new trial, the trial does not occur in the Court of Appeal. The Court of Appeal does not hear witnesses or consider new evidence on an appeal, except in rare cases with the permission of the Court. 

When does the Court of Appeal make its decision in a case?

The judge(s) may give its decision in court after hearing the argument. Other times, the judge(s) may “reserve” their decision and release it days, weeks of months later. 

Do I need a lawyer?

In most cases, a person may represent themselves at the Court of Appeal. However, it is recommended that you seek legal advice if possible. Bear in mind that court staff are not able to give you legal advice. 

Can the public attend proceedings in the Court of Appeal?
Yes, Court of Appeal proceedings are open to the public except for matters that have specifically been ordered to be “closed”. 

Can every case be appealed?

You do not have an automatic right of appeal to the Court of Appeal in every case. It depends on the kind of case.

In civil proceedings, you generally have a right of appeal to the Court of Appeal from a final order of a judge of the Superior Court, unless the order requires payment of $50,000 or less, dismisses a claim for that amount, or is subject to an appeal to the Divisional Court under the applicable legislation. In some cases, you may require leave (or permission) to appeal. For example, leave to appeal is required if you are appealing an order of the Divisional Court, if the governing legislation states that you need to seek leave, or if the appeal is only as to costs that are in the discretion of the court that made the order for costs.

In criminal proceedings, you generally have a right of appeal to the Court of Appeal in respect of indictable offences. In contrast, appeals from summary conviction offences are heard first by the Superior Court of Justice, with a further appeal to the Court of Appeal requiring leave.

What is “leave to appeal”?

In those cases that require “leave” to appeal, you need permission to bring your appeal. Leave to appeal will be granted by a single judge or a panel of three judges, depending on the circumstances. Sometimes motions for leave to appeal are heard in writing (i.e. there is no oral argument) and sometimes they are heard orally (i.e. in addition to filing written arguments, the parties appear before a judge or judges to make oral submissions). 

Who hears motions and what documentation must be filed prior to the hearing of a motion?

Most motions are heard by a single judge, though there are certain types of motions that must be heard by a three-judge panel. For example, motions for leave to appeal in most civil proceedings are heard by a panel of three judge in writing, without oral argument.

The materials to be filed on a motion typically include a Notice of Motion (Form 37A), a motion record, transcripts (if any), and a factum. The filing requirements may be flexible depending on the nature of the motion and the circumstances of your case.

Materials to be used on a motion must be served on the opposing party and filed with the Court.

Procedures for civil motions at the Court of Appeal are governed by rule 61.16 of the Rules of Civil Procedure. The court has also issued a Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario with further information.

Procedures for criminal motions are governed by the Criminal Appeal Rules. The Court has also issued a Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario with further information. 

Is there a time limit on appealing?

Yes. The appeal period varies, depending on the types of decisions or orders at issue. It is very important to check the appropriate statute or regulation that applies to your case. 

Can an appeal be filed after the appeal period expires?

If you have missed the deadline for filing an appeal, you may bring a motion to request an extension of time to file your Notice of Appeal. You must file an affidavit in support of your motion. The affidavit must set out the reasons why the appeal was not filed during the required appeal period. A judge will hear the motion and decide whether to grant you an extension of time.

In some cases, it may also be possible to file a Notice of Appeal after the deadline if the other party consents. 

What documents are required to start an appeal?

The appeal process is complex. In civil appeals, the appellant must serve and file a Notice of Appeal (Form 61A) and the Appellant’s Certificate Respecting Evidence (Form 61C). The appellant must also file proof that copies of the Notice of Appeal and Appellant’s Certificate Respecting Evidence were served on the respondent. Proof of service should be in the form of an affidavit (Form 16B), indicating when, where, and how the documents were served, or an admission by the party receiving the documents that they have been served.

In criminal appeals, you must also file a Notice of Appeal. However, the form to be used varies depending on the nature of the appeal. For information specific to your criminal appeal, you should click here and review the Criminal Appeal Rules

What further documents are needed to have your case heard in the Court of Appeal?

In addition to the documents required to start an appeal, other documents are required to “perfect” the appeal. This means all the necessary documents have been served and filed with the Court of Appeal, with proof of service, within the relevant time periods.

In civil appeals, you must file an appeal book and compendium, an exhibit book, a factum, and transcripts of evidence (if any). You must serve these documents on the respondent first, and then file them with the Court of Appeal along with proof of service. Proof of service should be in the form of an affidavit (Form 16B), indicating when, where, and how the documents were served, or an admission by the party receiving the documents that they have been served. Once those documents are filed, the last step is to file a Certificate of Perfection, which indicates you have served and filed all the necessary documents. Rule 61.09(3)(c) of the Rules of Civil Procedure explains the information you should include in your Certificate of Perfection.

In criminal appeals, you must file an appeal book, a factum, and copies of any relevant transcripts of evidence. A compendium is optional, but recommended. Like in civil appeals, you must serve these documents on the respondent first, and then file them with the Court of Appeal with proof of service and the Certificate of Perfection. Section 18(2) of the Criminal Appeal Rules explains what the Certificate of Perfection requires.

There is a fee to perfect a civil appeal, which you must pay when you file the Certificate of Perfection. There is no fee to perfect a criminal appeal. 

How much does it cost to file documents in the Court of Appeal?

For a full listing of all legislated Court of Appeal fees, click here.

For information on what to do if you can’t afford to pay the fees in your case, click here

When will the appeal be heard?

Once the Court of Appeal receives all the necessary documents, a date will be set for the hearing of the appeal that is agreeable to all the parties. 

Where can I access a bilingual copy of a Court of Appeal judgment?

Judgments of the Court of Appeal are published in English, French or, in some cases, both English and French. Free access to electronic copies of recent court decisions is available through the Court of Appeal website or https://www.canlii.org/en/. The Centre for Legal Translation and Documentation also maintains a website with certain decisions from the Court that have been translated into French. Most decisions of the Court are available only in English or French and not both languages. 

What about court costs if I lose my case?

If your appeal is dismissed, the Court of Appeal may assess costs against you. In civil matters, cost awards are common. In criminal matters, costs are generally not awarded, either for or against the Crown. 

Can a Court of Appeal decision be appealed?

Yes, in some cases an appeal can be taken to the Supreme Court of Canada in Ottawa. In most cases, leave to appeal from the Supreme Court of Canada is required. 

Is the Court of Appeal still open during the COVID-19 pandemic?

The Court of Appeal remains open and is continuing to hear appeals during the COVID-19 pandemic. There are no in-person hearings, but hearings are being held remotely by video and/or audio conference or in writing. All members of the public should avoid non-essential visits to the courthouse. Public counter services are closed, but filings can be mailed, sent by email, or if neither option is possible, dropped off inside the public lobby of the Intake Office. Further information about the Court’s operations during the COVID-19 pandemic is available here.

What should I do if I have further questions?

Court staff may be able to answer some of your procedural or administrative questions about the Court, but they cannot provide legal advice. If you have questions, you should speak with a lawyer. 

The Law Society of Ontario has an online Law Society Referral Service that gives you the name of a lawyer or licensed paralegal who can give you free legal advice for up to 30 minutes in any area of law. If you cannot wait for a legal representative to call you back, or if you do not have a call-back number, email lsrs@lso.ca. Or, if you are in crisis or in custody, call 1-855-947-5255 or 416-947-5255, Monday to Friday, between 9:00 a.m. and 5:00 p.m.

If you are unable to afford a lawyer, you may wish to attend a free legal clinic in your area, or apply for legal aid. For more information, you may contact Legal Aid Ontario at 1-800-668-8258 between Monday and Friday from 8:00 a.m. to 5:00 p.m. 

JusticeNet helps people find a legal professional if their income is too high to qualify for Legal Aid but too low to afford legal fees. If your net family income is less than $59,000, JusticeNet may refer you to an online directory of lawyers, paralegals, and mediators who provide help at reduced rates. You may contact JusticeNet at 416-479-0551 or toll-free at 1-866-919-3219.

If you are representing yourself, either because you do not qualify for Legal Aid or because you choose to do so, you may nevertheless wish for assistance. Pro Bono Ontario helps self-represented persons on civil matters at the Court of Appeal. You may contact Pro Bono Ontario at 1-855-255-7256, Monday to Friday between 9:30 a.m. and 12:00 p.m., and from 1:00 p.m. to 4:00 p.m. 

KEY TERMS 

The following is a basic guide to some common terms at the Court of Appeal for Ontario which may be unfamiliar or have a special meaning. For a more comprehensive glossary of legal terms, you may wish to consult a lawyer, the Ministry of the Attorney General’s Glossary of Terms, or another resource. 

Affidavit

A written statement of facts that is sworn or affirmed to be true. An affidavit is usually signed before a notary public or a commissioner of oaths. All lawyers licensed to practice law in Ontario can commission affidavits.

Appeal

A review by an appellate court of a decision of another appellate court, a trial court or a tribunal. The appellate court may affirm, vary or set aside the original decision.

Appellant

The person or party appealing a decision.

Appeal Book

A volume filed with the court by the appellant containing all of the documents, affidavit evidence, listing of exhibits, orders, judgments, and/or reasons for the decision of the judge or other authority of the court or tribunal appealed from required for the appeal.

In civil appeals, the appeal book’s contents are specified in r. 61.10(1) of the Rules of Civil Procedure. It is filed by the appellant and called the appeal book and compendium. In criminal appeals, the appeal book’s contents are specified in r. 14(1) of the Criminal Appeal Rules. It is filed by the appellant, except in inmate appeals, and appeals under Part XX.1 of the Criminal Code where the appellant is not represented by counsel (see r. 41 of the Criminal Appeal Rules).

Appeal Allowed

The court has decided in favour of the appellant (the party bringing the appeal).

Appeal Dismissed

The court has decided in favour of the respondent (the party against whom the appeal is brought) and against the appellant.

Bilingual Proceeding Requisition Form

A form to request a bilingual proceeding.

You have the right to use the English or French language in documents or proceedings before the Court of Appeal. You can exercise your right to a bilingual proceeding in several ways, including by filing your first document in French or a requisition form requesting a bilingual proceeding (Form RR3007).

For more information on bilingual court proceedings in Ontario, see the Ministry of the Attorney General’s website.

Book of Authorities

Copies of past legal cases and extracts from secondary sources that are relevant to the issues and that are cited in the factum. The Book of Authorities usually has a table of contents listing all of the cases and sources contained in it.

Chambers

Chamber sittings at the Court of Appeal are heard by a single judge of the Court and often involve motions.

Compendium

A volume filed with the court with excerpts from the transcript, exhibits and other documents relevant to the hearing of the appeal. In civil appeals, the appellant files a combined appeal book and compendium and the respondent files a compendium. The appeal book and compendium’s contents are specified in r. 61.10(1) of the Rules of Civil Procedure and the compendium’s contents are specified in r. 61.12(7) of the Rules of Civil Procedure.

Costs

A money award made by a court or tribunal for expenses in bringing or defending a legal proceeding or a step in a proceeding.

Court of Appeal for Ontario

The highest court in the province, which hears appeals from the Ontario Court of Justice, the Ontario Superior Court of Justice and the Divisional Court.

Court Transcript Order Form

A form to be completed when ordering transcripts or reasons for decisions. The form is available from the Authorized Court Transcriptionists for Ontario website, along with instructions on how to place your order.

Criminal Appeal Rules

Rules regarding criminal court proceedings as opposed to civil proceedings or provincial offences. The Criminal Appeal Rules are available here. The Court of Appeal for Ontario also publishes a Practice Direction for criminal appeals.

Divisional Court

An appellate branch of the Superior Court. The Divisional Court hears judicial review applications, statutory appeals from provincial administrative tribunals, and some civil and family appeals.

Endorsement

A short, written decision of a judge, sometimes written on the back of an appeal book or motion record. Prior to May 8, 2017, the Court of Appeal for also used the term “endorsement” to describe brief decisions of the Court that are now called “Reasons for Decision.”

Evidence

Evidence that was presented to a trial court or an administrative tribunal and admitted into evidence.

Exhibits

A document filed with the court setting out a party’s concise argument, including the relevant facts and law. In civil appeals, the contents of the appellant’s factum are specified in r. 61.11(1) of the Rules of Civil Procedure and the contents of the respondent’s factum are specified in r. 61.12(3). In criminal appeals, the contents of the appellant’s factum are specified in r. 16(3) of the Criminal Appeal Rules and the contents of the respondent’s factum are specified in r. 16(4) unless the appeal is from sentence only. If the appeal is from sentence only, the contents of the factum are specified in r. 17(1) of the Criminal Appeal Rules.

In Camera Proceeding

A hearing that is private or closed. In camera proceedings are not open to the public. The media may or may not be able to attend such hearings.

Judgment

The final decision by the court in a legal proceeding. Shorter decisions at the court of appeal are referred to as Reasons for Decision or Endorsements.

Leave

Permission to do something. In some cases, a person wishing to do something at the Court must ask the Court for leave (permission) to do so. For example, before appealing an order of the Divisional Court, leave of the Court of Appeal is required.

Motion

A request to the court for an order during the course of a court proceeding. Motions can be brought for many purposes, such as asking for an extension of time to file an appeal. A Notice of Motion must be filed with the court and include an affidavit giving details in support of the motion.

Motion for Leave to Appeal

The procedure for requesting the court’s permission to hear an appeal.

Motion Record

A volume filed with the court containing documents that are to be used in the hearing of the motion. The Motion Record usually includes the Notice of Motion, affidavits, a list of relevant transcripts, any orders or decisions from a court or tribunal, and any other material that is necessary for the hearing of the motion. In civil and criminal appeals, the contents of the motion record are generally specified in r. 37.10(2) of the Rules of Civil Procedure.

Moving Party

The person or party bringing the motion.

Ontario Court of Justice

Ontario’s provincial trial court. The Ontario Court of Justice has jurisdiction over matters specifically assigned to it, including a wide range of criminal and family law matters as well as provincial offences matters.

Order

A decision of a court or tribunal requiring a person or party to do something or refrain from doing something. An order may be temporary (called an interim order) or final.

Perfection

The filing with the court of all the documents necessary for scheduling an appeal for hearing, along with proof of service of those documents.

Practice Directions

Directions, notices, guides and similar publications from the court that are supplemental to the rules and procedures and set out the practice you need to follow. They include specific instructions regarding the preparation of material, and other general information.

Publication Ban

A prohibition on the publication of certain details about a legal proceeding. A publication ban may be imposed by an order of the court or through the operation of a federal or provincial statute. A publication ban may be mandatory (meaning that it is imposed either automatically or on application) or discretionary (meaning that it is imposed at the discretion of the court).

Reasons for Decision

A short decision prepared by the court that does not include an extensive analysis of the facts or the law.

Reserved Judgment

When a judge or judges do not immediately give their decision, but issue their written decision at a later date.

Respondent

The person or party opposing the appeal.

Responding Party

The person or party opposing the motion.

Rules of Civil Procedure

Rules regarding civil court proceedings as opposed to criminal proceedings. The Rules of Civil Procedure are available here. The Court of Appeal for Ontario also publishes a Practice Direction for civil appeals, which is available here.

Serve or Service

Official delivery of legal documents to another party to the proceeding, following the specific rules as set out in the Rules of Civil Procedure, the Criminal Appeal Rules or the Court’s practice directions.

Superior Court of Justice

Ontario’s court of general and inherent jurisdiction. The Superior Court can hear any matter that is not specifically assigned to another level of court and has authority over matters granted to it by federal and provincial statutes.

Supreme Court of Canada

Supreme Court of Canada:  The final court of appeal in Canada. The Supreme Court hears appeals from the Court of Appeal for Ontario as well as other provincial and territorial courts of appeal, the Federal Court of Appeal and the Court Martial Appeal Court of Canada.

Transcript

A written record of the oral proceedings of the court or tribunal case under appeal.

Tribunal

An administrative body or person exercising a statutory decision-making power. Tribunals generally have a mandate to adjudicate and resolve specific types of disputes between parties and function with less formality than courts..

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