Appeals

Understanding Appeals in Ontario

Appeals in Ontario's civil justice system allow parties dissatisfied with lower court judgments to seek review from a higher court, safeguarding the consistency and fairness of the legal process. Through an appeal, individuals or businesses can challenge errors of law, significant misapprehensions of fact, or incorrect applications of legal principles at trial. An appellate court does not re-try the dispute from scratch — it asks whether the proceedings met essential legal standards and whether the result is defensible on the record.

In Ontario, the structure of civil appeals varies with the court of origin, the amount at stake, and the type of order. Some orders require leave to appeal while many final orders carry a right of appeal. Every stage has strict timelines, filing requirements, and formal steps for preparing the record. Whether the dispute concerns a modest award or a precedent-setting verdict, working with experienced appellate counsel helps ensure the strategy, timing, and standards of review are handled correctly.

When to Consider an Appeal

Assessing Grounds and Likelihood of Success

Whether to appeal a civil judgment is a practical decision. Appeals take time and money. Counsel reviews the record for clear errors — such as a misinterpretation of a legal principle, failure to consider key evidence, or a procedural misstep that undermined fairness. If the issue turns mainly on credibility or factual inferences, success can be harder because factual findings attract significant deference.

Common errors that may support an appeal include misapplication of legal tests, failure to consider relevant precedent, overlooking or misconstruing material evidence, and procedural unfairness. Where the trial judge's reasons demonstrate a fundamental misunderstanding of the applicable law or a palpable and overriding error in fact-finding, appellate intervention becomes more likely. Conversely, where the judge correctly stated the law and made findings reasonably supported by the evidence, deference will usually preserve the original result even if another judge might have decided differently.

An early assessment by appellate counsel examines the reasons for judgment, the trial record, any transcript excerpts, and the applicable legal standards to determine whether a reasonable prospect of success exists — preventing the expense and delay of pursuing unmeritorious appeals while identifying viable grounds that warrant full advocacy.

Procedural and Timing Factors

Ontario imposes strict timelines, often 30 days from the date of the final order or its entry. Missing a deadline can be fatal unless an extension is granted. Appellants must order transcripts where needed, prepare the appeal record, and serve factums within set periods.

Legal Framework for Civil Appeals

Jurisdiction and Court Levels

Ontario civil appeals often come from the Superior Court of Justice and proceed either to the Divisional Court or to the Court of Appeal for Ontario. Smaller claims and many interlocutory rulings fall to Divisional Court appeals, while major final orders usually go to the province's court of appeal. The Courts of Justice Act and the Rules of Civil Procedure set out which orders require leave and which carry an appeal as of right. Choosing correctly between Divisional Court and the Court of Appeal can be outcome-determinative, so forum and timing analysis should happen early.

Divisional Court

The Divisional Court is a branch of the Superior Court of Justice that hears specific statutory appeals, many interlocutory matters, and judicial reviews of administrative decisions. It has jurisdiction over appeals from final orders of the Superior Court where the amount in dispute is $50,000 or less (excluding costs), appeals from interlocutory orders of Superior Court judges where leave is granted, statutory appeals from various administrative tribunals, and applications for judicial review of administrative decisions. Understanding which matters fall within Divisional Court jurisdiction prevents the procedural complications that arise from filing in the wrong forum.

Court of Appeal for Ontario

For significant civil matters, the Ontario Court of Appeal is the province's highest appellate court. It hears complex commercial disputes, class actions, high-value personal injury awards, and property cases. Its decisions shape the law for Ontario and bind all lower courts in the province. The Court hears appeals from final orders of the Superior Court (except where Divisional Court has jurisdiction) and from certain interlocutory orders where leave is granted. Parties bringing appeals to the Court of Appeal should expect rigorous written advocacy, tight timelines, and close attention to standards of review.

Supreme Court of Canada

A party may apply for leave to the Supreme Court of Canada after a Court of Appeal decision. Leave is rare and typically reserved for questions of national importance or areas where appellate courts conflict. The Supreme Court focuses on cases that raise issues of public importance, conflicts between appellate courts across Canada, or fundamental questions about the interpretation of federal law. Even meritorious appeals on questions of provincial law are unlikely to be heard unless they meet this high threshold. For most Ontario civil matters, the Court of Appeal is the final stop.

Judicial Review of Administrative Tribunals

Administrative matters often proceed by judicial review in Ontario, usually in the Divisional Court, and focus on the legality and reasonableness of a tribunal's decision rather than a full reweighing of evidence. Judicial review assesses whether an administrative decision-maker acted within its jurisdiction, followed fair procedures, and rendered a decision that falls within a range of reasonable outcomes. The standard of review is typically reasonableness — whether the decision is justified, transparent, and intelligible, and falls within the range of possible, acceptable outcomes defensible on the facts and law.

Unlike appeals, judicial review applications are brought by way of application rather than appeal notice. Fresh evidence is generally not permitted. Remedies include quashing the decision, remitting the matter to the tribunal for reconsideration, or in some cases directing a specific outcome where only one lawful result is possible. A judicial review application in Ontario has different procedures and remedies than a typical appeal, so it is important to identify the correct route at the outset.

The Appeal Process

Preparing the Appeal Record and Transcripts

Early tasks include assembling the appeal record — the notice of appeal, pleadings, relevant orders, and the reasons for judgment. The record should be complete but focused; overloading the panel can obscure the key issues and increase cost. Counsel must exercise judgment in selecting what to include, ensuring that key evidence supporting the grounds of appeal is readily accessible.

Transcript excerpts are particularly important where oral testimony, witness credibility, or specific exchanges during the trial are central to the appeal. Ordering full transcripts can be expensive, so counsel typically orders only the portions relevant to the issues raised. Where factual findings are challenged, having the precise testimony available allows the panel to assess whether the trial judge's conclusions were reasonable.

Writing the Factum

The factum is the heart of the appeal. The appellant's factum sets out the background, alleged errors, applicable standards of review, and the remedy sought. The respondent's factum addresses each ground and defends the result. Strong writing and careful citation often shape the panel's view before oral argument begins.

Oral Argument and Decision

Many appeals include a short oral hearing. Oral argument is typically limited to 15–30 minutes per side, depending on the complexity of the case. Counsel summarizes key points, answers questions from the bench, and refers to specific portions of the record. The panel will have read the factums and will use oral argument to probe weak points, clarify ambiguities, and test the strength of the parties' positions.

Effective oral advocacy focuses on the strongest one or two issues, uses clear examples from the record, and responds to judicial concerns with precision. Counsel should be thoroughly familiar with the entire record and be able to direct the panel to specific page references instantly. Decisions may be released orally or in writing. Outcomes include affirming the judgment, varying it, or ordering a new trial where errors compromised the result. Costs usually follow the event.

Responding to Appeals & Cross-Appeals

When an opponent files an appeal, the successful party below becomes the respondent. The respondent's role is to defend the trial decision by demonstrating that it was correct or, at minimum, free from reversible error. This involves emphasizing the deference owed to the trial judge's factual findings, showing that the applicable law was properly applied, and arguing that any alleged errors were immaterial to the outcome.

Respondents benefit from the presumption of correctness that attaches to trial decisions. Appellate courts do not lightly interfere with judgments rendered after a full hearing. The respondent's factum should highlight the trial judge's reasons, show how they are supported by the evidence, and demonstrate that the decision falls within the range of reasonable outcomes. Where the appellant's grounds are weak or based on mischaracterizations of the record, the respondent's factum provides the necessary corrective.

A cross-appeal allows the respondent to challenge aspects of the trial decision that were unfavourable while defending the overall result. For example, a plaintiff who won at trial but believes the damage award was too low may cross-appeal on quantum while defending liability. Cross-appeals are subject to the same procedural rules as appeals, including time limits and perfection requirements. Strategic considerations include whether the additional issues genuinely warrant appellate attention, whether success on the cross-appeal would materially improve the result, and whether raising additional issues risks undermining the strength of the response to the main appeal.

Common Grounds for Appeal

Errors of Law

One frequent basis for appeal arises when the trial judge misapplies or misstates legal principles — misinterpreting a statute, applying a wrong legal test, ignoring binding precedents, or giving flawed jury instructions. The appellate court applies a correctness standard to pure questions of law, substituting its own interpretation if it finds the trial judge's approach wrong. Examples include applying the wrong test for causation in a negligence case, misinterpreting a contractual provision, failing to consider a relevant statutory defence, or incorrectly instructing a jury on the elements of a cause of action. Where the error is clear and affected the result, appellate courts will intervene to correct it.

Misapprehension of Fact

Another ground is that the trial judge made a critical factual error — ignoring uncontested evidence, misstating witness testimony, or drawing an inference no reasonable fact-finder could reach. Factual findings receive heightened deference because the trial judge observes witness demeanour and direct evidence. An appellant must show the error is palpable and overriding — clearly evident on the record and likely having altered the outcome. Minor factual slips that do not affect the result will not justify reversal.

To succeed on this ground, the appellant must point to specific instances in the record where the trial judge demonstrably erred — showing that the judge attributed statements to a witness that were never made, overlooked a key piece of uncontroverted evidence, or reached a conclusion irreconcilable with the evidence actually tendered.

Procedural Fairness or Natural Justice

Where procedural fairness is compromised — such as denying a party the chance to cross-examine a witness, cutting off cross-examination on a critical issue, displaying bias or a closed mind, or making findings based on evidence not properly before the court — an appellant can argue that the trial process fell below basic justice standards. If these flaws likely shaped the verdict, the appellate court can order a new trial or direct the lower court to correct the issue. Even strong factual or legal findings do not salvage a decision marred by fundamental procedural breaches.

Excessive or Inadequate Damages

Appeals often concern dissatisfaction with damage awards. An appellate panel typically defers to the trial judge or jury on quantum, reversing or adjusting only if the award is wholly out of proportion or rests on a legal error such as double-counting or ignoring crucial medical or financial evidence. Damage awards are reviewed for reasonableness — whether the award is consistent with comparable cases, whether it properly compensates the proven losses, and whether the trial judge applied correct legal principles in assessing quantum. Awards that are demonstrably outside the acceptable range or that rest on legal errors will be varied on appeal.