Divisional Court Appeals

Appeals to the Ontario Divisional Court: A Detailed Guide

The appellate process in Ontario is complex, and an appeal to the Divisional Court has its own rules. The Ontario Divisional Court reviews decisions of lower courts and administrative tribunals, and an appeal should begin with a clear understanding of the court’s jurisdiction, powers and procedures. This guide is for those considering an appeal to the Divisional Court, from the court’s jurisdiction to the steps involved in perfecting an appeal.

Jurisdiction of the Ontario Divisional Court

The Ontario Divisional Court, a branch of the Superior Court of Justice, has a specialized role in Ontario’s legal system. It primarily hears appeals from administrative tribunals, civil cases, and handles judicial reviews of government actions. Determining whether your appeal falls under the jurisdiction of the Divisional Court is the first critical step.

Types of Appeals Heard by the Divisional Court:

1. Statutory Appeals from Administrative Tribunals:
   
   
   • The Divisional Court hears statutory appeals from decisions made by various administrative tribunals, including the Local Planning Appeal Tribunal and the Ontario College of Teachers. These tribunals handle a wide range of matters, and understanding whether an appeal from their decisions should be directed to the Divisional Court is essential.
     
     
2. Civil Appeals:
   
   
   • Appeals from final orders made by associate judges, particularly in cases involving amounts below specific thresholds, fall within the Divisional Court’s jurisdiction. For example, appeals where the amount in dispute is $50,000 or less are typically heard by the Divisional Court. Understanding this jurisdiction is key for litigants throughout Ontario, whether in Toronto or elsewhere.
     
     
3. Small Claims Court Appeals:
   
   
   • The Divisional Court also hears appeals from final orders of the Small Claims Court in cases where the amount in dispute exceeds $3,500. These cases, while often involving smaller amounts, can have significant consequences for the parties, and the appeal process deserves to be understood fully.
     
     
4. Interlocutory Orders:
   
   
   • Appeals from interlocutory orders made by Superior Court judges, with leave, are also heard by the Divisional Court. Securing leave to appeal is a critical step in this process and requires demonstrating that the appeal raises substantial issues of law or public importance.
     
     
5. Judicial Reviews:
   
   
   • Beyond appeals, the Divisional Court exercises jurisdiction over judicial reviews, where decisions made by administrative bodies or government agencies are reviewed for legality. Judicial review is the means of challenging a decision that may have been made outside the bounds of legal authority.
     
     

Determining the Correct Appeal Route:

Identifying correctly whether an appeal lies to the Divisional Court or to another court avoids procedural missteps. Appeal routes in Ontario vary based on the originating court or tribunal, the amount at issue, and whether the order is final or interlocutory. Filing an appeal in the wrong court can lead to delays and additional costs. The Divisional Court has the discretion to transfer an improperly filed appeal to the appropriate court, but this is not always guaranteed.

Powers of the Divisional Court in Appeals

The Divisional Court has a broad range of powers for managing and deciding appeals. These powers let the court address both the legal and the factual issues presented in an appeal.

Key Powers of the Divisional Court:

1. Quashing an Appeal:
   
   
   • The court has the authority to quash (dismiss) an appeal if it determines that the appeal is not properly before it. This might occur due to jurisdictional issues or other procedural problems. The power to quash an appeal keeps the court’s list to appeals that are properly before it.
     
     
2. Interim Orders:
   
   
   • The Divisional Court can issue interim orders to prevent prejudice to the parties while an appeal is pending. These orders are temporary and aim to preserve the status quo until the court can fully hear and decide the appeal.
     
     
3. Admitting Fresh Evidence:
   
   
   • While appellate courts generally do not admit new evidence, the Divisional Court can make exceptions in rare cases. This occurs particularly when the evidence could not have been obtained earlier despite due diligence and is decisive to the outcome of the case.
     
     
4. Ordering a New Trial:
   
   
   • If the court finds that the original trial was fundamentally flawed, by procedural error or an incorrect application of the law, it has the power to order a new trial. This remedy is reserved for cases where the trial errors likely affected the outcome.
     
     
5. Granting Leave to Appeal:
   
   
   • The Divisional Court serves as a gatekeeper in cases requiring leave to appeal. The court must determine whether the appeal raises issues of significant public importance or whether there is reason to doubt the correctness of the decision. This function keeps insubstantial appeals from proceeding.
     
     
6. Issuing Just Orders:
   
   
   • Under section 134(1)(c) of the Courts of Justice Act, the Divisional Court has broad discretion to make any order it considers just in the circumstances. This allows the court to fit its orders to the needs of each case.
     
     

Procedure for Appealing to the Divisional Court

Appealing to the Divisional Court involves a series of well-defined steps, all governed by the Rules of Civil Procedure. Each step must be followed closely if the appeal is to be properly heard and decided.

1. Commencing the Appeal:

The appeal process begins with serving a Notice of Appeal (Form 61A.1) and an Appellant’s Certificate Respecting Evidence (Form 61C) on all parties whose interests may be affected by the appeal. These documents must be filed with the court within 30 days of the order being appealed. If leave to appeal is required, the appellant has 7 days from the granting of leave to serve and file these documents.

The Notice of Appeal must clearly state the relief sought, the grounds of appeal, and the basis for the court’s jurisdiction. This includes references to statutory provisions or regulations establishing jurisdiction, the nature of the order appealed from, and whether leave to appeal has been granted if required.

2. Perfecting the Appeal:

Perfecting the appeal involves several critical steps:

• Appeal Book and Compendium: This document contains the essential materials from the lower court or tribunal, including pleadings, orders, and relevant evidence. It must be well-organized and complete, as the court will rely on these documents to review the case.
  
  
• Exhibit Book: The Exhibit Book includes copies of all exhibits that were entered into evidence during the trial or hearing. These are the court’s way into the case.
  
  
• Transcripts of Evidence: If oral evidence was given at trial, the appellant must order and file transcripts. These transcripts provide a verbatim record of the proceedings, which is essential for the court’s review.
  
  
• Factum: The factum is a written argument that outlines the appellant’s case, including the legal issues, the facts, and how the law should be applied. The factum must be clear, concise, and persuasive, as it is the primary document the judges will rely on when considering the appeal.
  
  
• Certificate of Perfection: Once all the required documents have been prepared, served, and filed, the appellant must file a Certificate of Perfection. This certificate confirms that the appeal is ready to proceed.
  
  

Timeliness in perfecting an appeal is critical. Failure to meet deadlines can result in the dismissal of the appeal for delay. However, the court may extend these deadlines if justice requires it.

3. Cross-Appeals:

After receiving the appellant’s Notice of Appeal, the respondent may choose to file a cross-appeal. This cross-appeal can be either independent or dependent on the outcome of the main appeal. For example, if a respondent was partially successful but dissatisfied with certain aspects of the decision, they may file a cross-appeal seeking additional relief.

The procedure for filing a cross-appeal is similar to that of the main appeal, requiring the service and filing of a Notice of Cross-Appeal (Form 61E) and the preparation of a respondent’s factum. The timeline for filing a cross-appeal is also strict, typically requiring it to be filed within 15 days of receiving the Notice of Appeal.

4. Motions During the Appeal Process:

The appellate process may involve various motions governed by Rule 37 of the Rules of Civil Procedure. Common motions in the Divisional Court include:

• Motion to Admit Fresh Evidence: The court may consider new evidence if the appellant can demonstrate that the evidence is credible, relevant, and could not have been presented earlier despite due diligence.
  
  
• Motion for Extension of Time: If an appellant or respondent requires more time to perfect an appeal or complete another procedural step, they may file a motion for an extension of time. The court will consider factors such as the reason for the delay, the length of the delay, any prejudice to the opposing party, and the merits of the appeal.
  
  
• Motion on Consent: If the parties agree on certain issues, they may file a motion on consent. This motion must include the consent of all parties and a draft order for the court to review.
  
  
• Stays Pending Appeal: Filing an appeal may automatically stay certain orders, particularly those involving monetary payments. However, orders involving support payments are typically not stayed, and a specific motion may be required to obtain a stay in such cases.
  
  

5. Hearing the Appeal:

Once the appeal is perfected, the next step is to schedule a hearing date. The appellant must contact the Divisional Court’s Registrar to arrange the hearing, providing all necessary information and coordinating with the respondent. Due to recent procedural changes, all hearings are currently conducted via teleconference or videoconference.

At least one day before the hearing, the parties must submit a counsel sheet, which outlines the names of counsel and the estimated time required for submissions. Parties are also encouraged to upload a compendium for oral argument, containing excerpts of evidence and legal authorities they intend to rely on during the hearing.

6. Dismissal for Delay and Abandonment:

If an appellant fails to perfect their appeal within the prescribed timelines, the respondent may file a motion to dismiss the appeal for delay. Similarly, if a party decides to abandon their appeal, they must file a Notice of Abandonment, leading to the dismissal of the appeal, often with cost consequences for the abandoning party.

Conclusion

The Ontario Divisional Court is central to the appellate process, and anyone considering an appeal needs to understand its jurisdiction, powers and procedures. Whether the appeal is from a Small Claims Court decision, an administrative tribunal or a Superior Court interlocutory order, each step must be followed closely if the appeal is to be properly heard and decided.

Grigoras Law represents appellants and respondents in appeals to the Ontario Divisional Court. Our Toronto appeal lawyers guide clients through the appellate process with precision. If you are considering an appeal to the Divisional Court, contact us to discuss your case and how we can assist.