Civil appeals in Toronto.

Clients often arrive at an appeal on the understanding that a wrong result is itself a ground for review, which is not how appellate jurisdiction works in Ontario. That jurisdiction is entirely statutory. A right of appeal exists only where a statute creates one, and it exists in the terms the statute sets, to the court the statute names, and within the time the rules allow. Where no statute gives the right, there is no appeal, however unjust the outcome may feel to the party on the receiving end of it.

The second point worth absorbing early is that an appeal lies from the order rather than from the reasons. A party who accepts the disposition but objects to something the judge said along the way will generally find there is nothing to appeal, which is a disappointment to clients whose real grievance is a finding about their credibility or their conduct. That is better understood before a notice of appeal is filed than afterwards.

The third is that an appeal is a review of a completed proceeding on the record that was before the judge below, rather than an opportunity to run the case differently, call the witness who was not called, or put in the document that nobody produced. Fresh evidence can be admitted, but the test is a demanding one: the evidence must generally not have been available with due diligence, must bear on a decisive issue, must be reasonably capable of belief, and must be capable of affecting the result. The Palmer criteria, applied in civil appeals A good many fresh evidence motions fail on the first of those branches.

The route is fixed by the Courts of Justice Act, and it turns on three questions: whether the order is final or interlocutory, who made it, and in some cases how much money is involved.

A final order of a judge of the Superior Court is appealed to the Court of Appeal for Ontario as of right. Courts of Justice Act, s. 6(1)(b) That is the general rule, and it is subject to three exceptions that between them account for a considerable number of Ontario appeals.

The first exception is a monetary one. Where the final order is for a single payment of not more than $50,000 exclusive of costs, or for periodic payments totalling not more than $50,000 in the first twelve months, or dismisses a claim for such an amount, the appeal lies to the Divisional Court instead. Courts of Justice Act, ss. 19(1)(a), 19(1.2) The figure that governs is the amount awarded below rather than the amount a party has chosen to put in issue, so appealing only part of a larger award will not move the appeal into the Divisional Court.

The second concerns who made the order, since a final order of an associate judge goes to the Divisional Court whatever the amount at stake. The third is that interlocutory orders of a Superior Court judge go to the Divisional Court and only with leave, which is a real threshold rather than a formality and which carries its own shorter deadline.

All of which leaves the question that generates more wasted costs than any other in appellate practice, namely whether the order is final or interlocutory. The distinction has nothing to do with when the order was made or how significant it felt at the time. It turns on whether the order finally disposes of the rights of a party or of a substantive defence, or whether it merely governs the conduct of the litigation on the way to a determination. Summary judgment granted is final; summary judgment refused is interlocutory. Orders on pleadings, particulars, security for costs and production are ordinarily interlocutory even where they feel decisive to the party who lost them.

The consequences of getting this wrong are more serious than embarrassment. An appellate court has no jurisdiction beyond what it was given, and it will raise the point on its own initiative where the parties have not. Transfer provisions exist, but they operate neither automatically nor always in time. Of everything on this page, this is the question on which it is most worth taking advice before anything is filed.

A notice of appeal must generally be served and filed within thirty days after the date the order was made, unless a statute or rule provides otherwise. Rule 61.04(1) The period runs from the order, which means it can be running while a party is still waiting for a formal typed order to be issued and entered, and while they are still deciding whether to appeal at all.

Where leave to appeal an interlocutory order to the Divisional Court is required, the period is shorter still: the motion for leave must be served within fifteen days. A party who assumes they have a month, when in fact they had a fortnight, has lost the appeal without ever reaching its merits.

Filing the notice is only the first step. The appeal must then be perfected, which means assembling and filing the appeal book, the transcripts where evidence was taken, the exhibits and the factum, within a period that depends on whether transcripts are required at all. An appeal that has not been perfected can be dismissed for delay, and a fair number of appeals end that way rather than on their merits.

Time can be extended, but an extension is discretionary and is granted on established factors: whether the party formed an intention to appeal within the time, the length of and explanation for the delay, prejudice to the responding party, and the merits of the proposed appeal. The last of those is where most late applications fail. A court will forgive a short delay in a case with a real point. It is far less willing to revive a hopeless appeal that was also late.

The stay provisions are among the more consequential parts of appellate procedure and among the least widely understood, on both sides of a judgment.

Delivering a notice of appeal automatically stays any provision of the order for the payment of money, other than support, until the appeal has been disposed of, and it does so without any motion or order. Rule 63.01(1) A money judgment against an appellant becomes unenforceable on delivery of the notice.

The automatic stay is narrower than most people assume, and its exceptions do more work than the rule itself. It does not apply where leave to appeal is required, so a notice of motion for leave stays nothing at all, and it does not apply to an order refusing to set aside a default judgment. More importantly for most clients, it does not reach non-monetary relief of any kind. An injunction, an order to transfer shares, an order to deliver up property, a declaration or an order vacating a certificate of pending litigation all continue to bind and to be enforceable unless a judge orders otherwise on a motion.

An appellant who has been ordered to pay damages therefore has some room to breathe, while an appellant who has been enjoined or ordered to do something has none, and will have to move promptly for a stay on the familiar test of a serious issue, irreparable harm and the balance of convenience.

The position from the other side of the same order is worth setting out as well. A party who has won a money judgment and is watching the appeal period run should expect a notice of appeal to freeze enforcement, and the remedy is a motion to lift the stay, which is available but tends to be reserved for cases of real hardship or where the appeal looks weak. A stay does not, in any event, prevent a writ of execution from being issued and filed, so priority can be preserved while enforcement waits.

Before an appellate court turns to whether it would have decided the case differently, it asks how much room it has to interfere at all, and the answer depends on the kind of error alleged. That question is usually determinative of the appeal.

Questions of law are reviewed for correctness, meaning that the appellate court decides the legal question for itself and owes the judge below no deference. Whether a contractual term is enforceable as a matter of law, whether the elements of a cause of action were correctly identified, and whether the wrong test was applied are all questions of that kind, and they are where most successful appeals are found.

Findings of fact are reviewed for palpable and overriding error, meaning an error that is both obvious and consequential to the outcome. Housen v. Nikolaisen, 2002 SCC 33 A trial judge who saw the witnesses, watched the cross-examination and preferred one account over another will not be second-guessed because an appellate panel reading a transcript might have weighed the evidence differently. Questions of mixed fact and law attract the same deference unless a legal principle can be extricated from them.

Discretionary decisions sit at the deferential end of the same scale, so costs awards, adjournments, case management rulings and the shape of an oppression remedy are all reviewed on the footing that the judge below was entitled to choose among a range of reasonable options.

Translated into something useful for a client, an appeal advanced on the basis that the judge was wrong about the facts seldom succeeds, while one advanced on the basis that the judge applied the wrong test frequently does. The useful first question in any appellate assessment is therefore whether the client's disagreement with the result can be expressed as an error of law, rather than how strongly they hold it.

Appeals are expensive, they take a long time, and they carry a costs risk of their own, since a losing appellant will ordinarily pay the respondent's costs of the appeal on top of the costs already owing from below.

A candid assessment therefore has to answer several questions before anyone drafts a notice. Is there an extricable error of law, or a disagreement with findings of fact? Is the order final or interlocutory, and does that route require leave? Has the thirty-day period run, and if it has, is there an explanation? Is the amount at stake proportionate to the cost of two more years of litigation? And is there a non-monetary term of the order that is going to operate against the client the whole time, whether or not the appeal is filed?

The honest answer is sometimes that an appeal is not the right instrument, and that a negotiated resolution of the judgment, or a motion below, will produce a better outcome faster. A party is entitled to hear that before spending money, not after.

Where there is a genuine point of law, though, an appeal remains one of the few procedures in civil litigation capable of changing an outcome altogether, and what wins it is fairly ordinary work: identifying the error precisely, building a record that demonstrates it, and writing a factum a busy panel can follow on a single reading. An intake form is the sensible way to begin that assessment, and the earlier within the thirty days the better.