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An appeal is not a second trial. It is a review for legal error on the record that already exists, on a strict thirty-day timetable, in a court that chose to be there rather than a court you can persuade with new evidence.
Book My Consultation →Rule 61.04 requires a notice of appeal from a final order to be served within thirty days after the making of the order appealed from. The appeal route itself is set by sections 6 and 19 of the Courts of Justice Act.
Rule 61.04 requires a notice of appeal from a final order to be served on all parties within thirty days after the order was made, and filed with proof of service. Where leave to appeal to the Divisional Court is required for an interlocutory order, Rule 62.02 requires a notice of motion for leave to be served within fifteen days.
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The most common and most costly error in appellate practice is filing in the wrong court. The route is set by statute, not by preference. Section 6(1)(b) of the Courts of Justice Act gives the Court of Appeal for Ontario jurisdiction over appeals from final orders of a judge of the Superior Court of Justice, subject to the exceptions that send certain matters to the Divisional Court. Section 19(1)(a) sends appeals from final orders of a Superior Court judge to the Divisional Court where the amount involved, exclusive of costs, does not exceed the prescribed sum of $50,000, or where the order is for periodic payments not exceeding that amount annually. Section 19(1)(b) sends interlocutory orders of a Superior Court judge to the Divisional Court, with leave.
Everything therefore depends on whether the order is final or interlocutory, a distinction that is far less obvious than it sounds. An order is final if it finally disposes of the substantive rights of a party or of a substantive defence, and interlocutory if it deals with a procedural step or leaves the substantive issue to be determined. Orders on summary judgment motions, orders striking pleadings and orders determining a limitation defence are common areas of difficulty. Filing in the wrong court can result in the appeal being quashed and the deadline for the correct route having passed.
Section 6(2) provides a useful mechanism: the Court of Appeal may hear and determine an appeal that lies to the Divisional Court where it is combined with an appeal properly before it. That does not cure every routing error, but it is one reason a party facing a mixed set of orders should obtain appellate advice before serving anything.
| Step | Requirement | Time |
|---|---|---|
| Notice of appeal, final order | Served on all parties and filed with proof of service | 30 days after the order was made, Rule 61.04 |
| Leave to appeal to Divisional Court | Notice of motion for leave | 15 days after the order was made, Rule 62.02 |
| Appeal book and transcripts | Ordered and perfected in accordance with Rule 61 | Within the time set by the rule after filing the notice |
| Cross-appeal | Notice of cross-appeal served | Within the period set by Rule 61.07 after service of the notice of appeal |
| Stay of a money order | Automatic on delivery of the notice of appeal | Rule 63.01, subject to a contrary order |
| Stay of any other order | By order of a judge of the appellate court | Rule 63.02, on motion |
Rule 63.01 provides that delivery of a notice of appeal from an order for the payment of money automatically stays enforcement of that order, other than a provision for support or the payment of a penalty, unless the court orders otherwise. That is a significant practical protection for an appellant, and a corresponding problem for a respondent holding a judgment. Orders that are not for the payment of money are not automatically stayed, and a motion under Rule 63.02 is required, on which the court considers the merits of the appeal, whether the moving party would suffer irreparable harm and the balance of convenience.
Extensions of time to appeal are available but are not granted as a matter of course. The court considers whether the appellant formed an intention to appeal within the time, the length of and explanation for the delay, prejudice to the respondent and the merits of the proposed appeal, with the overriding question being whether the justice of the case requires an extension. Relying on that discretion instead of the deadline is not a strategy.
This is the point most disappointed litigants misunderstand. An appeal is not a rehearing. On pure questions of law the standard of review is correctness, and an appellate court will substitute its own view. On questions of fact, and on questions of mixed fact and law where no extricable legal principle can be identified, the standard is palpable and overriding error, meaning an error that is both obvious and determinative of the result. Findings of credibility attract particular deference because the trial judge saw the witnesses.
Discretionary decisions, including most procedural rulings and costs awards, attract a high degree of deference. An appellate court will interfere only where the judge below erred in principle, considered irrelevant factors, failed to consider relevant ones, or reached a result that is plainly wrong. Leave is required to appeal a costs order alone under section 133(b) of the Courts of Justice Act, and such leave is sparingly granted.
The practical consequence is that a strong appeal identifies a discrete legal error, not a disagreement with how the evidence was weighed. Before recommending an appeal we read the reasons for judgment against the record and ask a specific question: can we articulate an error of law in one sentence? If the answer is no, the appeal is unlikely to succeed regardless of how unjust the outcome feels.
Section 134(4)(b) of the Courts of Justice Act permits an appellate court to receive further evidence, but the test is demanding. The evidence must generally not have been available with due diligence for the hearing below, must bear on a decisive issue, must be credible, and must be such that it could reasonably be expected to have affected the result. An appeal is not an opportunity to fill gaps in the case that was run.
Determine the appeal route, whether leave is required, whether the order is final or interlocutory, and whether a stay is automatic or must be sought. The thirty-day and fifteen-day clocks are running immediately.
The notice of appeal identifies the order appealed from, the relief sought and the grounds. Grounds should be specific errors, not general dissatisfaction, since a vague notice is a poor foundation for the factum.
Transcripts of the evidence and reasons are ordered promptly because they take time to produce and are frequently the cause of delay. The appeal book, exhibit book, transcripts, factum and authorities are then assembled and filed.
The factum is the appeal. It states the facts concisely and neutrally, identifies each error with a precise record reference, and argues the applicable standard of review for each ground. Appellate courts read the factum long before counsel speaks.
Oral argument is short and question-driven. The court may dismiss the appeal, allow it and substitute its own order, or order a new trial. Costs of the appeal normally follow the event, adding to the exposure of an unsuccessful appellant.
A further appeal from the Court of Appeal for Ontario lies to the Supreme Court of Canada only with leave of that court, granted where a question of public importance is raised. Leave is rarely granted, and no litigant should plan on the basis that a further appeal will be available.
Not every challenge to a decision is an appeal. An order of a master or an associate judge is reviewed differently from an order of a judge, and an order made by a registrar has its own route. A judgment obtained in default may be set aside on motion under Rule 19.08, on which the court considers whether the motion was brought promptly, whether there is a plausible explanation for the default, whether there is an arguable defence on the merits and the prejudice to each party. That motion is usually faster and cheaper than an appeal and is the correct remedy where the party never participated in the proceeding.
Rule 59.06 allows an order to be amended where it contains an error arising from an accidental slip or omission, or where the order does not accurately reflect what the court decided. It also permits a motion to set aside or vary an order on the ground of fraud or of facts arising or discovered after the order was made. These are narrow provisions and are not a substitute for an appeal, but where an order genuinely does not reflect the reasons, correcting it under Rule 59.06 is far quicker than appealing it.
Judicial review is a separate matter entirely. Decisions of administrative tribunals are generally reviewed by the Divisional Court under the Judicial Review Procedure Act rather than appealed under the Rules of Civil Procedure, unless the tribunal's governing statute creates a statutory right of appeal. Identifying which framework applies is the first step in any challenge to a tribunal decision, and the applicable deadlines differ from the appellate ones described on this page.
An appeal adds cost and time to a matter that has already consumed both, and an unsuccessful appellant pays the respondent's costs of the appeal in addition to the costs below. Against that, the automatic stay under Rule 63.01 defers enforcement of a money judgment while the appeal is pending, which has real value where liquidity is the immediate problem. Both sides of that ledger should be quantified before a notice of appeal is served.
Appeals also create a settlement opportunity. A respondent holding a judgment it cannot enforce for a year, facing a genuine legal issue, is often willing to discount. We assess appeals with that dynamic in mind and frequently recommend a Rule 49 offer alongside the appeal, because the objective is usually recovery or finality rather than an appellate ruling for its own sake.
Because the deadlines are short, our first deliverable on an appeal is a rapid written opinion identifying the correct route, the deadline, whether leave is required, whether a stay is available, and whether a viable ground of appeal exists on the reasons and the record. If it does not, we say so promptly so that no further money is spent.
Respondents should treat an appeal with equal discipline. A judgment on appeal is not secure, and the automatic stay under Rule 63.01 means the money is not coming in while the appeal is pending. A respondent's best position is usually a tightly argued factum defending the reasons below on the applicable deferential standard, combined with an early offer that gives the appellant a reason to discontinue rather than to press on.
We act on appeals in matters we ran at first instance and on appeals from proceedings conducted by other counsel, where a fresh reading of the reasons is often valuable. We also act for respondents defending judgments on appeal. Contact us immediately after an order is made, not near the end of the thirty days.
Our lawyers offer a initial consultation for most matters. Call, email, or book online. Do not sign anything before speaking with us.
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