5 questions to ask before starting a civil appeal in Ontario

Brooke MacKenzie, MacKenzie Barristers P.C.

 

You just received an unfavourable decision from the court. You disagree with the outcome, and you’re disappointed you lost. It’s natural for your first instinct to be to appeal.

 

Before you rush into this, however, there are a few things you need to know about the procedure to follow on appeal and what it takes for an appellate court to reverse a lower court’s decision.

 

Here are five questions you should be able to answer before you start an appeal.

 

1. Which court do I appeal to?

 

Despite the name, not every appeal goes directly to the Court of Appeal. The Rules of Civil Procedure and the Courts of Justice Act provide for a variety of different appeal routes, depending on:

 

  • who made the order appealed from (e. a Superior Court Judge, a Master, the Divisional Court, a Deputy Judge of the Small Claims Court, or an Assessment Officer);

 

  • whether the order was a final order or an interlocutory order; and

 

  • how much money was at stake.

 

Review the Rules and carefully consider how they apply to your situation, or seek legal advice on this question. If you appeal to the wrong court, your appeal may be quashed. This could result in a costs order against you, and may put you past the deadline to file your appeal in the proper court.

 

Note: This article deals with civil appeals in Ontario. Different rules apply to family law appeals, appeals in other provinces, and matters in the Federal Court such as immigration and intellectual property cases.

 

2. Do I need leave (permission) to appeal?

 

You do not always have an automatic right of appeal; you may need to first obtain the court’s permission to appeal the order by bringing a motion for leave to appeal.

 

Generally speaking, you will not require leave to appeal any decision made by a Master or a final order of the Superior Court, but you will require leave to appeal any decision that was itself an appeal (including any decision of the Divisional Court or the Court of Appeal, or an appeal of a Master’s order by a Superior Court judge) and an interlocutory order made by a judge.

 

An “interlocutory order” is an order made at an intermediate stage of the litigation that provides a provisional decision in the matter and not finally determine any party’s legal rights. Whether an order is interlocutory or final is not always obvious (this can cause headaches for many lawyers!), so it may be useful to seek legal advice on this question.

 

3. When do I have to file my appeal?

 

Before answering this question, you need to know the answers to Questions #1 and #2; the timelines depend on what court you’re appealing to and whether leave to appeal is required.

 

You could have as few as 7 days to commence an appeal (as is the case, for example, on an appeal from an interlocutory order of a Master). In most cases, you will have up to 15 days to serve a Notice of Motion for leave to appeal, or up to 30 days to commence your appeal by serving a Notice of Appeal and Certificate Respecting Evidence.

 

Rules 61 and 62 of the Rules of Civil Procedure set out the applicable timing for commencing an appeal. In some circumstances, the legislation that is at issue in your case may also speak to the relevant timelines and procedure. Be sure to review the relevant law and Rules carefully to determine which deadlines apply to your case—or seek legal advice about the applicable timing—at the earliest opportunity after you receive an order to avoid missing the deadline.

 

4. What “standard of review” will the appellate court apply?

 

This is important: an appeal is not a “do-over”. You have had your day in court, so to speak, and an appeal is not an opportunity to re-argue your case before a different decision-maker in the hopes of achieving a different result.

 

On appeal, the court effectively begins from the presumption that the trial judge made the right decision. To displace this presumption, an appellant must show that the court whose decision you are appealing made an error. The standard an appellant must meet to convince an appellate court that the lower court made an error depends on the nature of the alleged error. Did the alleged error relate to the judge’s findings of fact on the basis of the evidence; to the judge’s expression of the relevant law; or to how the judge applied the law to the facts?

 

The trial or motions judge’s assessment of the evidence and findings of fact will be given great deference by an appellate court. These findings will only be overturned on appeal if there was a “palpable and overriding error”. This is very high standard. The Supreme Court of Canada has held:

…it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence… The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts.[1]

 

If the court below made an error of law—for example, if the trial judge applied an incorrect legal standard, or missed a step in a legal test—an appellate court will not defer to the court below; instead, they will review the law and its application and make sure to get it right.

 

5. Is there a reasonable likelihood of success on appeal?

 

It’s not enough to merely identify an error or errors made by the lower court. You need to demonstrate that these errors made a difference to the outcome of the case.

 

Once you’ve identified an error, picture the appellate court asking: “So what?” If the outcome of the case would not have been any different if not for the error, there is no reason for an appellate court to intervene.

 

Think about whether there is a reasonable likelihood of success on appeal before you move forward. You must be able to explain:

 

  • what error(s) were made by the trial or motions judge (considering the applicable standard of review);

 

  • what would have followed if those errors had not been made; and

 

  • what an appeal court can do to make it right.

 

Remember—your appeal is not simply a “do-over”. It’s understandable that you disagree with an unfavourable result, but that may not be enough to warrant an appeal—especially since appeals can get expensive, given the cost of ordering transcripts, paying legal fees, and the risk of (another) adverse costs award!

 

It may be useful to seek an objective perspective before moving forward with an appeal. One of the services I provide on a limited-scope basis (for a fixed fee, if desired) is a preliminary review of a decision and opinion on a potential appeal, including an explanation of the applicable procedure and an opinion on the merits. Feel free to contact me at brooke@mackenziebarristers.com if you wish to discuss your case.

 

Brooke MacKenzie is a litigation lawyer in Toronto whose practice focuses on civil appeals and professional responsibility and liability. She has appeared as counsel before the Ontario Court of Appeal, Federal Court of Appeal, Divisional Court, and the Supreme Court of Canada.

 

 

[1] Housen v Nikolaisen, 2002 SCC 33 at para 23 [emphasis added].

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