To Whom Do I Appeal this Travesty of Justice?

The decision is out and sadly, in your view, justice has not prevailed. Before you even assess the merits of an appeal, you should take a step back and first confirm the availability of an appeal and the ground rules vis-à-vis forum and procedure. This is particularly critical as some appeals must be commenced in very short-order. You don’t want that sinking feeling in your stomach when you suddenly realize that your notice of appeal must be served tomorrow, or worse, three days ago.

Courts of Justice Act and the Rules of Civil Procedure. These provisions prescribe a number of critical aspects for civil appeals, including the timing of launching the appeal, where the appeal lies, whether the appeal is automatic or leave is required, and in some cases the test you are required to meet.

The first step in determining the route and timing of a civil appeal is to figure out whether the order you are appealing is “interlocutory” or “final”. This distinction is critical as different rules apply depending on this categorization, as outlined in the chart below.

In brief summary, an order is considered interlocutory where it determines a collateral issue and the ultimate merits of the case remain to be decided. In contrast, an order is considered final where it: (i) determines the subject matter/merits of the litigation or (ii) finally disposes of an issue raised by the defence that deprives the defendant of a substantive right which could be determinative of the entire action.

This distinction is not always clear in practice as evidenced by the hundreds of decisions where a dispute has arisen on this very issue. Interestingly, it also often leads to different rights of appeal depending on which party is successful, such as on a summary judgment motion. Needless to say, this issue should be examined carefully before commencing an appeal with reference to recent case law for the particular issue under appeal.

Once you have determined whether the order is final or interlocutory, the second step is to review the Rules of Civil Procedure and the Courts of Justice Act to determine where the appeal lies. In order to avoid a future frantic flip through the Rules or Courts of Justice Act, we have prepared the following chart outlining the appeal routes and timing of appeals for Orders of Masters, Superior Court judges, the Divisional Court and the Court of Appeal.

Court Interlocutory Orders Final Orders
Appeal Route Timing Appeal Route Timing
Order of a Master or Case Management Master of the Superior Court of Justice Automatic right of appeal to a judge of the Superior Court. (s. 17(a), CJA) Notice of Appeal must be served within 7 days after the making of the order or certificate appealed from (Rule 62.01(2)) Automatic right of appeal to the Divisional Court (see s. 19(1)(c), CJA) Notice of Appeal must be served together with an Appellant’s Certificate Respecting Evidence within 30 days after the making of the order unless a statute or the Rules provide otherwise. (Rules 61.04-05)
Order of a Judge of the Superior Court of Justice With leave to the Divisional Court (s. 19(1)(a), CJA). Notice of Leave to Appeal must be served within 15 days after the making of the order or the decision from which leave to appeal is sough, unless a statues provides otherwise (Rule 61.03(1)) If final order for under $50,000 exclusive of costs or for dismissing a claim for under $50,000 exclusive of costs - Automatic right of appeal to the Divisional Court (s. 19(1.2), CJA) Notice of Appeal must be served together with an Appellant’s Certificate Respecting Evidence within 30 days after the making of the order unless a statute or the Rules provide otherwise. (Rules 61.04-05)
If final order is for over $50,000 exclusive of costs or dismissing a claim for in excess of $50,000 exclusive of costs – automatic right of appeal to the Court of Appeal (S. 19(1.2), CJA)
Order of the Divisional Court With leave to the Court of Appeal in writing on a question of law or mixed fact and law (s. 6(1)(a), CJA; Rule 61.03.1(1)) Notice of Motion for Leave to Appeal must be served within 15 days after the making of the order or the decision from which leave to appeal is sought unless a statute provides otherwise. (Rule 61.03.1(1)) With leave to the Court of Appeal in writing on a question of law or mixed fact and law (s. 6(1)(a), CJA; Rule 61.03.1(1)) Notice of Motion for Leave to Appeal must be served within 15 days after the making of the order or the decision from which leave to appeal is sought unless a statute provides otherwise (Rule 61.03.1(1))
Order of the Court of Appeal With leave to the Supreme Court of Canada (s. 40 of the SCA) Notice of Application for Leave to Appeal and all materials necessary for the application must be served and filed within 60 days of the judgement appealed from (s. 58(1)(a)) With leave to the Supreme Court of Canada (s. 40 of the SCA) Notice of Application for Leave to Appeal and all materials necessary for the application must be served and filed within 60 days of the judgement appealed from (s. 58(1)(a))

In addition, there are specific rules with respect to who must be served with the notice of appeal or leave to appeal and the timing in which it must be filed. These requirements are set out in Rules 61 and 62 and should be consulted before commencing the appeal.

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