APPEALS
RULE 61 APPEALS TO AN APPELLATE COURT
APPLICATION OF THE RULE
61.01 Rules 61.02 to 61.16 apply to all appeals to an appellate court except as provided in clause 62.01 (1) (b), rule 62.02 or rule 71.03 and, with necessary modifications, to proceedings in an appellate court by way of,
(a) stated case under a statute;
(b) special case under rule 22.03, subject to any directions given under subrule 22.03(2); and
(c) reference under section 8 of the Courts of Justice Act.
DEFINITION
61.02 In rules 61.03 to 61.16, "Registrar" means,
(a) in the Court of Appeal, the Registrar of the Court of Appeal, or
(b) in the Divisional Court, the registrar in the regional centre of the region where the appeal is to be heard in accordance with subsection 20(1) of the Courts of Justice Act.
MOTION FOR LEAVE TO APPEAL TO DIVISIONAL COURT
Notice of Motion for Leave
61.03 (1) Where an appeal to the Divisional Court requires the leave of that court, the notice of motion for leave shall,
(a) state that the motion will be heard on a date to be fixed by the Registrar;
(b) be served within fifteen days after the date of the order or decision from which leave to appeal is sought, unless a statute provides otherwise; and
(c) be filed with proof of service in the office of the Registrar, within five days after service.
Motion Record, Factum and Transcripts
(2) On a motion for leave to appeal to the Divisional Court, the moving party shall serve,
(a) a motion record containing, in consecutively numbered pages arranged in the following order,
(i) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter,
(ii) a copy of the notice of motion,
(iii) a copy of the order or decision from which leave to appeal is sought, as signed and entered,
(iv) a copy of the reasons of the court or tribunal from which leave to appeal is sought with a further typed or printed copy if the reasons are handwritten,
(iv.1) a copy or any order or decision that was the subject of the hearing before the court or tribunal from which leave lo appeal is sought,
(iv.2) a copy of any reasons for the order or decision referred to in subclause (iv.I), with a further typed or printed copy if the reasons are handwritten,
(v) a copy of all affidavits and other material used before the court or tribunal from which leave to appeal is sought,
(vi) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves, and
(vii) a copy of any other material in the court file that is necessary for the hearing of the motion;
(b) a factum consisting of a concise argument stating the facts and law relied on by the moving party; and; and
(c) relevant transcripts of evidence, if they are not included in the motion record,
and shall file three copies of the motion record, factum and transcripts, if any, with proof of service, within thirty days after the filing of the notice of motion for leave to appeal.
(3) On a motion for leave to appeal to the Divisional Court, the responding party may, where he or she is of the opinion that the moving party's motion record is incomplete, serve a motion record containing, in consecutively numbered pages arranged in the following order,
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter; and
(b) a copy of any material to be used by the responding party on the motion and not included in the motion record,
and may serve a factum consisting of a concise argument stating the facts and law relied on by the responding party, and shall file three copies of the responding party's motion record and factum, if any, with proof of service, within fifteen days after service of the moving party's motion record, factum and transcripts, if any.
Notice and Factum to State Questions on Appeal
(4) The moving party's notice of motion and factum shall, where practicable, set out the specific questions that it is proposed the Divisional Court should answer if leave to appeal is granted.
Date for Hearing
(5) The Registrar shall fix a date for the hearing of the motion which shall not, except with the responding party's consent, be earlier than fifteen days after the filing of the moving party's motion record, factum and transcripts, if any.
Time for Delivering Notice of Appeal
(6) Where leave is granted, the notice of appeal shall be delivered within seven days after the granting of leave.
Costs Appeal Joined with Appeal as of Right (February 1, 1996)
(7) Where a party seeks to join an appeal under clause 133(b) of the Courts of Justice Act with an appeal as of right,
(a) the request for leave to appeal shall be included in the notice of appeal as part of the relief sought;
(b) leave to appeal shall be sought from the panel of the Divisional Court hearing the appeal as of right; and
(c) where leave is granted, the panel may then hear the appeal.
Costs Cross-Appeal Joined with Appeal or Cross-Appeal as of Right
(8) Where a party seeks to join a cross-appeal under clause 133(h) of the Courts of Justice Act or under another statute that requires leave for an appeal with an appeal or cross-appeal as of right,
(a) the request for leave to appeal shall be included in the notice of appeal or cross-appeal as part of the relief sought;
(b) leave to appeal shall he sought from the panel of the Divisional Court hearing the appeal or cross-appeal as of right; and
(c) where leave is granted, the panel may then hear the appeal.
Application of Rules
(9) Subrules (1) to (6) do not apply where subrules (7)and (8) apply.
MOTION FOR LEAVE TO APPEAL TO COURT OF APPEAL
Motion in Writing
61.03.1(1) Where an appeal to the Court of Appeal requires the leave of that court, the motion for leave shall be heard in writing, without the attendance of parties or counsel.
Notice of Motion
(2)The notice of motion for leave to appeal shall state that the court will hear the motion in writing, 36 days after service of the moving party's motion record, factum and transcripts, if any, or on the filing of the moving party's reply factum, if any, whichever is earlier.
(3)The notice of motion,
(a) shall he served within 15 days after the date of the order or decision from which leave to appeal is sought, unless a statute provides otherwise; and
(b)shall be filed with proof of service in the office of the Registrar within five days after service.
Moving Party's Motion Record, Factum and Transcripts
(4)The moving party shall serve a motion record and transcripts of evidence, if any, as provided in subrule 61.03(2), and a factum consisting of the following elements:
1. Part I, containing a statement identifying the moving party and the court from which it is proposed to appeal, and stating the result in that court.
2.Part II, containing a concise summary of the facts relevant to the issues on the proposed appeal, with such reference to the evidence by page and line as is necessary.
3.Part III, containing the specific questions that it is proposed the court should answer if leave to appeal is granted.
4.Part IV, containing a statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue.
5.Schedule A, containing a list of the authorities referred to.
6.Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws.
(5)Parts I to IV shall be arranged in paragraphs numbered consecutively throughout the factum.
(6)The moving party shall file three copies of the motion record, factum and transcripts, if any, and may file three copies of a book of authorities, if any, with proof of service, within 30 days after the filing of the notice of motion for leave to appeal.
(7)The responding party may, if of the opinion that the moving party's motion record is incomplete, serve a motion record as provided in subrule 61.03(3).
(8)The responding party shall serve a factum consisting of the following elements:
1. Part I, containing a statement of the facts in the moving party's summary of relevant facts that the responding party accepts as correct and those facts with which the responding party disagrees and a concise summary of any additional facts relied on, with such reference to the evidence by page and line as is necessary.
2.Part II, containing the responding party's position with respect to each issue raised by the moving party, immediately followed by a concise statement of the law and authorities relating to it.
3.Part III, containing a statement of any additional issues raised by the responding party, the statement of each issue to be followed by a concise statement of the law and authorities relating to it.
4.Schedule A, containing a list of the authorities referred to.
5.Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws.
(9)Parts I to III shall he arranged in paragraphs numbered consecutively throughout the factum.
(10)The responding party shall file three copies of the factum, and of the motion record, if any, and may file three copies of a book of authorities, if any, with proof of service within 25 days after service of the moving party's motion record and other documents.
Moving Party's Reply Factum
(11) If the responding party's factum raises an issue on which the moving party has not taken a position in the moving party's factum that party may serve a reply factum.
(12)The reply factum shall contain consecutively numbered paragraphs setting out the moving party's position on the issue, followed by a concise statement of the law and authorities relating to it.
(13)The moving party shall file three copies of the reply factum with proof of service within 10 days after service of the responding party's factum.
Determination of Motion
(14)Thirty-six days after service of the moving party's motion record and factum. and transcripts, if any, or on the filing of the moving party's reply factum, if any, whichever is earlier, the motion shall be submitted to the court for consideration. and,
(a) if it appears from the written material that no oral hearing is warranted, the court shall determine the motion;
(b) otherwise, the court shall order an oral hearing to determine the motion.
Date for Oral Hearing
(15)If the court orders an oral hearing, the Registrar shall fix a date for it.
Time for Delivering Notice of Appeal
(16) Where leave is granted. the notice of appeal shall be delivered within seven days after the granting of leave.
Costs Appeal Joined with Appeal as of Right
(17) Where a party seeks to join an appeal under clause 133 (b) or the Courts of Justice Act with an appeal as of right,
(a) the request for leave to appeal shall be included in the notice of appeal as part of the relief sought;
(b) leave to appeal shall be sought from the panel of the Court of Appeal hearing the appeal as of right;
(c) where leave is granted, the panel may then hear the appeal.
Costs Cross-Appeal Joined with Appeal or Cross-Appeal as of Right
(18) Where a party seeks to join a cross-appeal under clause 133 (b) or the Courts of Justice Act or under another statute that requires leave for an appeal with an appeal or cross-appeal as of right,
(a) the request for leave to appeal shall be included in the notice of appeal or cross-appeal as part of the relief sought;
(b) leave to appeal shall be sought from the panel of the Court of Appeal hearing the appeal or cross-appeal as of right;
(c)where leave is granted, the panel may then hear the appeal.
Application of Rules
(19) Subrules (1) to (16) do not apply where Subrules (17) and (18)apply.
COMMENCEMENT OF APPEALS
Time for Appeal and Service of Notice
61.04 (1) An appeal to an appellate court shall be commenced by serving a notice of appeal (Form 61A) together with the certificate required by subrule 61.05(1) on every party whose interest may be affected by the appeal, other than,
a) a defendant who was noted in default; or
(b) a respondent who has not delivered a notice of appearance, unless he or she was heard at the hearing with leave,
and on any person entitled by statute to be heard on the appeal, within thirty days after the date of the order appealed from, unless a statute or these rules provide otherwise.
Title of Proceeding
(2) The title of the proceeding in an appeal shall be in accordance with Form 61B.
Notice of Appeal
(3) The notice of appeal (Form 61A) shall state,
(a) the relief sought;
(b) the grounds of appeal; and
(c) the basis for the appellate court's jurisdiction, including references to,
(i) any provision of a statute or regulation establishing jurisdiction,
(ii) whether the order appealed from is final or interlocutory,
(iii) whether leave to appeal is necessary and if so whether it has been granted, and
(iv) any other facts relevant to establishing jurisdiction.
(4) The notice of appeal, with proof of service, shall be filed in accordance with
subrule 4.05(4) (leaving in or mailing to court office) in the Registrar's office within ten days after service.
CERTIFICATE OR AGREEMENT RESPECTING EVIDENCE
Appellant's Certificate Respecting Evidence
61.05 (1) In order to minimize the number of documents and the length of the transcript required for an appeal, the appellant shall serve with the notice of appeal an appellant's certificate respecting evidence (Form 61C) setting out those portions of the evidence that, in his or her opinion, are not required for the appeal.
Respondent's Certificate Respecting Evidence
(2) Within fifteen days after service of the appellant's certificate, the respondent shall serve on the appellant a respondent's certificate respecting evidence (Form 61D), confirming the appellant's certificate or setting out any additions to or deletions from it.
(3) A respondent who fails to serve a respondent's certificate within the prescribed time shall be deemed to have confirmed the appellant's certificate.
Agreement Respecting Evidence
(4) Instead of complying with subrules (1) to (3), the parties may, within thirty days after service of the notice of appeal, make an agreement respecting the documents to be included in the appeal book and compendium and the transcript required for the appeal.
Ordering Transcripts
(5) The appellant shall within thirty days after filing the notice of appeal file proof that he or she has ordered a transcript of all oral evidence that the parties have not agreed to omit, subject to any direction under subrule 61.09(4) (relief from compliance).
(6) A party who has previously ordered a transcript of oral evidence shall forthwith modify his or her order in writing to comply with the certificates or agreement.
(7) When the evidence has been transcribed, the court reporter shall forthwith give written notice to all parties and the Registrar.
Costs Sanctions for Unnecessary Evidence
(8) The court may impose costs sanctions where evidence is transcribed or exhibits are reproduced unnecessarily.
SECURITY FOR COSTS OF APPEAL
61.06 (1) In an appeal where it appears that,
(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;
(b) an order for security for costs could be made against the appellant under rule 56.01; or
(c) for other good reason, security for costs should be ordered,
a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.
(1.1) If an order is made under subrule (1), rules 56.04, 56.05, 56.07, 56.08 apply with necessary modifications.
(2) If an appellant fails to comply with an order under subrule (1), a judge of the appellate court on motion may dismiss the appeal.
CROSS-APPEALS
61.07 (1) A respondent who,
(a) seeks to set aside or vary the order appealed from; or
(b) will seek, if the appeal is allowed in whole or in part, other relief or a different disposition than the order appealed from,
shall, within fifteen days after service of the notice of appeal, serve a notice of cross-appeal (Form 61E) on all parties whose interests may be affected by the cross-appeal and on any person entitled by statute to be heard on the appeal, stating the relief sought and the grounds of the cross-appeal.
(1.1) A respondent may, subject to subrule (1.2), serve a notice of cross-appeal without obtaining leave to appeal for the cross-appeal if,
(a) there is an appeal as of right; or
(b) leave to appeal has been granted.
(1.2) The respondent shall obtain leave to appeal in the manner provided by subrule 61.03(8) or 61.03.1(18), as the case may be, before serving the notice of cross-appeal if the cross-appeal is taken under,
(a) clause 133(b) of the Courts of Justice Act
(b) another statute that requires leave for an appeal.
(2) The notice of cross-appeal, with proof of service, shall be filed in the office of the Registrar within ten days after service.
(3) Where a respondent has not delivered a notice of cross-appeal, no cross-appeal may be heard except with leave of the court hearing the appeal.
AMENDMENT OF NOTICE OF APPEAL OR CROSS-APPEAL
Supplementary Notice to be Served and Filed
61.08 (1) The notice of appeal or cross-appeal may be amended without leave, before the appeal is perfected, by serving on each of the parties on whom the notice was served a supplementary notice of appeal or cross-appeal (Form 61F) and filing it with proof of service.
Argument Limited to Grounds Stated
(2) No grounds other than those stated in the notice of appeal or cross-appeal or supplementary notice may be relied on at the hearing, except with leave of the court hearing the appeal.
Relief Limited
(3) No relief other than that sought in the notice of appeal or cross-appeal
or supplementary notice may be sought at the hearing, except with the leave of the court hearing the appeal.
PERFECTING APPEALS
Time for Perfecting
61.09 (1) The appellant shall perfect the appeal by complying with subrules (2) and (3),
(a) where no transcript of evidence is required for the appeal, within thirty days after filing the notice of appeal; or
(b) where a transcript of evidence is required for the appeal, within 60 days after receiving notice that the evidence has been transcribed.
Record and Exhibits Only If Required
(2) If the appellant or the respondent believes that a part of the record or
the original exhibits from the court or tribunal from which the appeal is taken is required for the proper hearing of the appeal, the appellant or respondent may move before a judge of the appellate court for an order that they be sent to the Registrar.
Material to be Served and Filed
(3) The appellant shall,
(a) serve on every other party to the appeal and any person entitled by statute or an order under rule 13.03 (intervention in appeal) to be heard on the appeal,
(i) the appeal book and compendium referred to in rule 61.10,
(ii) the exhibit book referred to in rule 61.10.1,
(iii) a typed or printed copy of the transcript of evidence,
(iv) an electronic version of the transcript of evidence, unless the court reporter did not prepare an electronic version, and
(v) a typed or printed copy of the appellant's factum referred to in rule 61.11;
(b) file with the Registrar, with proof of service,
(i) three copies of the appeal book and compendium, and where the appeal is to be heard by five judges, two additional copies,
(ii) one copy of the exhibit book
(ill) a typed or printed copy of the transcript of evidence,
(iv) an electronic version of the transcript of evidence, unless the court reported did not prepare an electronic version,
(v) three typed or printed copies of the appellant's factum, and where the appeal is to be heard by five judges, two additional copies, and
(vi) an electronic version of the appellant's factum; and
(c) file with the Registrar a certificate of perfection,
((i) stating that the appeal book and compendium, exhibit book, transcripts, if any, and appellant's factum have been filed, and
(ii) setting out, with respect to every party to the appeal and any person entitled by statute or by an order under rule 13.03 (intervention in appeal) to be heard on the appeal, the name, address and telephone number of,
(A) the party's or person's lawyer, or
(B) if the party or person acts in person, the party's or person's name, address for service and telephone number.
Relief from Compliance
(4) If it is necessary to do so in the interest of justice, a judge of the appellate court may give special directions and vary the rules governing the appeal book and compendium, the exhibit book, the transcript of evidence and the appellant's factum.
Notice of Listing for Hearing
(5) When an appeal is perfected, the Registrar shall place it on the list of cases to be heard at the appropriate place of hearing and shall mail a notice of listing for hearing (Form 61G) to every person listed in the certificate of perfection.
APPEAL BOOK
61.10 (1) The appeal book and compendium shall contain, in consecutively numbered pages with numbered tabs arranged in the following order,
(a) a table of contents describing each document by its nature and date;
(b) a copy of the notice of appeal and of any notice of cross-appeal or supplementary notice of appeal or cross-appeal;
(c) a copy of the order or decision appealed from as signed and entered;
(d) a copy of the reasons of the court or tribunal appealed from, with a further typed or printed copy if the reasons are handwritten;
(d.1) [Revoked O. Reg. 19/03, s. 14.]
(e) if an earlier order or decision was the subject of the hearing before the court or tribunal appealed from, a copy of the order or decision, as signed and entered, and a copy of any reasons for it, with a further typed or printed copy if the reasons are handwritten;
(f) a copy of the pleadings or notice of application or any other document that initiated the proceeding or defines the issues in it;
(g) a copy of any excerpts from a transcript of evidence that are referred to in the appellant's factum;
(h) a copy of any exhibits that are referred to in the appellant's factum;
(i) a copy of any other documents relevant to the hearing of the appeal that are referred to in the appellant's factum;
(j) a copy of the certificates or agreement respecting evidence referred to in rule 61.05;
(k) a copy of any order made in respect of the conduct of the appeal; and
(l) a certificate (Form 61H) signed by the appellant's lawyer, or on the lawyer's behalf by someone he or she has specifically authorized, stating that the contents of the appeal book and compendium are complete and legible.
(2) The Registrar may refuse to accept an appeal book and compendium if it does not comply with these rules or is not legible..
EXHIBIT BOOK
61.10.1 The exhibit book shall contain, in consecutively numbered pages with numbered tabs arranged in the following order,
(a) a table of contents describing each exhibit by its nature, date and exhibit number or letter;
(b) any affidavit evidence, including exhibits, that the parties have not agreed to omit;
(c) transcripts of evidence used on a motion or application that the parties have not agreed to omit; and
(d) a copy of each exhibit filed at a hearing or marked on an examination that the parties have not agreed to omit, arranged in order by date (or, if there are documents with common characteristics, grouped accordingly in order by date) and not by exhibit number.
APPELLANT'S FACTUM
61.11 (1) The appellant's factum shall be signed by the appellant's counsel, or on counsel's behalf by someone he or she has specifically authorized, and shall consist of,
(a) Part I, containing a statement identifying the appellant and the court or tribunal appealed from and stating the result in that court or tribunal;
Part II, containing a concise overview statement describing the nature of the case and of the issues;
(c) Part III, containing a concise summary of the facts relevant to the issues on the appeal, with such reference to the transcript of evidence and the exhibits as is necessary;
(d) Part IV, containing a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
(d.1) Part V, containing a statement of the order that the appellate court will be asked to make, including any order for costs;
(e) a certificate stating,
(i) that an order under sub rule 61.09(2) (original record and exhibits) has been obtained or is not required, and
(ii) .how much time (expressed in hours or fractions of an hour) counsel estimates will be required for his or her oral argument, not including reply;
(f) Schedule A, containing a list of. the authorities referred to; and
(g) Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws.
(1.1) References to the transcript of evidence shall be by tab, page number and line in the appeal book and compendium, and references to exhibits shall be by page number in the exhibit book and by tab and page number in the appeal book and compendium.
(2) Parts I to IV shall be arranged in paragraphs numbered consecutively throughout the factum.
61.12 Respondent's Factum and Compendium
Filing and Service
(1) Every respondent shall,
(a) serve on every other party to the appeal,
(i) a typed or printed copy of the respondent's factum; and
(ii) the respondent's compendium;
(b) file with the Registrar, with proof of service,
(i) three typed or printed copies of the respondent's factum, and where the appeal is to be heard by five judges, two additional copies, and
(ii) three copies of the respondent's compendium, and where the appeal is to be heard by five judges, two additional copies; and
(c) file with the Registrar an electronic version of the respondent's factum.
Time for Delivery
(2) The respondent's factum and compendium shall be delivered within 60 days after service of the appeal book and compendium, exhibit book, transcript of evidence, if any, and appellant's factum.
Contents of Respondent's Factum
(3) The respondent's factum shall be signed by the respondent's counsel, or on counsel's behalf by someone he or she has specifically authorized, and shall consist of,
(a) Part I, containing a concise overview statement describing the nature of the case and of the issues;
(b) Part II, containing a statement of the facts in the appellant's summary of relevant facts that the respondent accepts as correct and those facts with which the respondent disagrees, and a concise summary of any additional facts relied on, with such reference to the transcript of evidence and the exhibits as is necessary;
(c) Part III, containing the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
(d) Part IV, containing a statement of any additional issues raised by the respondent, the statement of each issue to be followed by a concise argument with reference to the law and authorities relating to that issue;
(d.1) [Revoked O. Reg. 19/03, s. 17.]
(e) Part V, containing a statement of the order that the appellate court will be asked to make, including any order for costs;
(f) a certificate stating,
(i) that an order under subrule 61.09(2) (original record and exhibits) has been obtained or is not required, and
(ii) how much time (expressed in hours or fractions of an hour) counsel estimates will be required for his or her oral argument, not including reply;
(g) Schedule A, containing a list of the authorities referred to; and
(h) Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws that are not included in Schedule B to the appellant's factum.
(3.1) [Revoked O. Reg. 19/03, s. 17.]
(4) References to the transcript of evidence shall be by tab, page number and line in the respondent's compendium, and references to exhibits shall be by page number in the exhibit book and by tab and page number in the respondent's compendium.
(5) Parts I to V shall be arranged in paragraphs numbered consecutively throughout the factum.
Cross-Appeal
(6) Where a respondent has served a notice of cross-appeal under rule 61.07,
(a) the respondent shall prepare a factum as an appellant by cross-appeal and deliver it with or incorporate it in the respondent's factum; and
(b) the appellant shall deliver a factum as a respondent to the cross-appeal within ten days after service of the respondent's factum.
Contents of Respondent's Compendium
(7) The respondent's compendium shall contain, in consecutively numbered pages with numbered tabs arranged in the following order,
(a) a table of contents describing each document by its nature and date;
(b) a copy of any excerpts from a transcript of evidence that are referred to in the respondent's factum;
(c) a copy of any exhibits that are referred to in the respondent's factum; and
(d) a copy of any other documents relevant to the hearing of the appeal that are referred to in the respondent's factum.
Relief from Compliance
(8) If it is necessary to do so in the interest of justice, a judge of the appellate court may give special directions and vary the rules governing the respondent's factum and the respondent's compendium.
61.12.1 Revoked O. Reg. 19/03, s. 18.
DISMISSAL FOR DELAY
Motion by Respondent
61.13 (1) Where an appellant has not,
(a) filed proof that a transcript of evidence that the parties have not agreed to omit was ordered within the time prescribed by subrule 61.05(5); or
(b) perfected the appeal within the time prescribed by subrule 61.09(1) or by an order of the appellate court or a judge of that court,
the respondent may make a motion to the Registrar, on ten days notice to the appellant, to have the appeal dismissed for delay.
Notice by Registrar
(2) Where the appellant has not,
(a) filed a transcript of evidence within 60 days after the Registrar received notice that the evidence. has been transcribed; or
(b) perfected the appeal within one year after filing the notice of appeal,
the Registrar may serve notice on the appellant that the appeal will be dismissed for delay unless it is perfected within ten days after service of the notice.
(2.1) Where no transcript of evidence is required for the appeal and the appellant has not perfected it within the time prescribed by subrule 61.09(1) or by an order of the appellant court or a judge of that court, the Registrar may serve notice on the appellant that the appeal will be dismissed for delay unless it is perfected within 10 days after service of the notice.
Registrar to Dismiss where Default not Cured
(3) Where the appellant does not cure the default,
(a) in the case of a motion under subrule (1), before the hearing of the motion; or
(b) in the case of a notice under subrule (2) or (2.1), within ten days after service of the notice,
or within such longer period as a judge of the appellate court allows,
the Registrar shall make an order in (Form 611) dismissing the appeal for delay, with costs and shall serve the order on the respondent.
Cross-Appeals
(4) Where a respondent who has served a notice of cross-appeal has not delivered a factum in the cross-appeal within 60 days after service of the appeal book and compendium, transcript of evidence and appellant’s factum, the appellant may make a motion to the Registrar, on five days notice to the respondent, to have the cross-appeal dismissed for delay.
(5) Where the respondent does not deliver a factum in the cross-appeal before the hearing of the motion under subrule (4) or within such longer period as a judge of the appellate court allows, the Registrar shall make an order in (Form 611) dismissing the cross-appeal for delay, with costs.
Motions for Leave
(6) On a motion for leave to appeal, where the moving party has not served and filed the motion record, factum and (if necessary) transcripts, in accordance with subrule 61.03(2) or subrules 61.03.1(4) to (6), the responding party may make a motion to the Registrar, on ten days notice to the moving party, to have the motion for leave to appeal dismissed for delay.
(7) On a motion for leave to appeal, where the moving party has not served and filed the motion record and other documents within 60 days after the filing of the notice of motion for leave to appeal, the Registrar may serve notice on the moving party that the motion will be dismissed for delay unless the documents are served and filed within 10 days after service of the notice.
(8) On a motion for leave to appeal, where the moving party,
(a) in the case of a motion under subrule (6), does not serve and file the documents before the hearing of that motion, or within such longer period as a judge of the appellate court allows;
(b) in the case of a notice under subrule (7), does not serve and file the documents within ten days after service of the notice or within such longer period as a judge of the appellate court allows,
the Registrar shall make an order in (Form 61J) dismissing the motion for delay, with costs.
FAILURE TO OBTAIN ORDER TO CONTINUE APPEAL
61.13.1 (1) If a transfer or transmission of an appellant's interest or liability takes place while an appeal is pending and no order to continue is obtained within a reasonable time, a respondent may made a motion to the Registrar, on 10 days notice to the appellant, to have the appeal dismissed for delay.
(2) If the appellant does not obtain an order to continue before the hearing of the motion or within the longer period allowed by a judge of the appellate court, the Registrar shall make an order dismissing the appeal for delay, with costs.
ABANDONED APPEALS
Delivery of Notice of Abandonment
61.14 (1) A party may abandon an appeal or cross-appeal by delivering a
notice of abandonment (Form 61K).
Deemed Abandonment
(2) A party who serves a notice of appeal or cross-appeal and does not file
it within ten days after service shall be deemed to have abandoned the appeal or cross-appeal, unless the court orders otherwise.
Effect of Abandonment
(3) Where an appeal or cross-appeal is abandoned or is deemed to have
been abandoned, the appeal or cross-appeal is at an end, and the respondent or appellant is entitled to the costs of the appeal or cross-appeal, unless a judge of the appellate court orders otherwise.
CROSS-APPEAL WHERE APPEAL DISMISSED FOR DELAY OR ABANDONED
61.15 (1) Where an appeal is dismissed for delay or is abandoned, a respondent who has cross-appealed may,
(a) within fifteen days thereafter, deliver a notice of election to proceed (Form 61L); and
(b) make a motion to a judge of the appellate court for directions in respect of the cross-appeal.
(2) Where the respondent does not deliver a notice of election to proceed
within fifteen days, the cross-appeal shall be deemed to be abandoned without costs unless a judge of the appellate court orders otherwise.
MOTIONS IN APPELLATE COURT
Rule 37 Applies Generally
61.16 (1) Rule 37, except rules 37.02 to 37.04 (jurisdiction to hear motions, place of hearing, to whom to be made) and rule 37.17 (motion before commencement of proceeding), applies to motions in an appellate court, with necessary modifications..
Motion to Receive Evidence
(2) A motion under clause 134(4)(b) of the Courts of Justice Act (motion to receive further evidence) shall be made to the panel hearing the appeal.
Motions Required to be Heard by One Judge
(2.1) A motion required by subsection 7(2) or 21(3) of the Courts of Justice
Act to be heard and determined by one judge may be heard and determined by a panel hearing an appeal or another motion in the proceeding properly made to the panel.
Motions Required to be Heard by Panel
(2.2) A motion in the Court of Appeal for an order that finally determines and appeal, other than an order dismissing the appeal on consent, shall be heard and determined by a panel consisting of not fewer than three judges sitting together, and always of an uneven number of judges.
Motion to be Heard by More Than One Judge
(3) Where a motion in an appellate court is to be heard by more than one judge, the notice of motion shall state that the motion will be heard on a date to be fixed by the Registrar.
Minimum Notice Period, Filing
(3.1) Repealed O. Reg. 263/03, s. 6(2
Certificate of Estimated Time for Argument
(3.2) The notice of motion shall contain a certificate stating how much time (expressed in hours or fractions of an hour) counsel estimates will be required for his or her oral argument, not including reply.
Motion Record and Factum
(4) On a motion referred to in subrule (3),
(a) the moving party,
(i) shall serve a motion record that contains the documents referred to in subrule 37.10(2) and a factum consisting of a concise argument stating the facts and law relied on by the moving party, and
(ii) shall file three copies of the moving party's motion record and factum, with proof of service, within 30 days after filing the notice of motion;
(b) the responding party,
(i) may, if of the opinion that the moving party's motion record is incomplete, serve a motion record that contains the documents referred to in subrule 37.10(3),
(ii) shall serve a factum consisting of a concise argument stating the facts and law relied on by the responding party, and
(iii) shall file three copies of the responding party's motion record and factum, with proof of service, within 25 days after service of the moving party's motion record and factum; and
(c) a party who intends to refer to a transcript of evidence at the hearing shall ensure that it is included in the motion record.
Review of Registrar's Order
(5) A person affected by an order or decision of the Registrar may make a motion to a judge of the appellate court to set it aside or vary it by a notice of motion that is served forthwith after the order or decision comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.
Review of Single Judge's Order
(6) A person who moves to set aside or vary the order of a judge of an appellate court under subsection 7(5) or 21(5) of the Courts of Justice Act shall do so by a notice of motion that is served within four days after the order is made and states that the motion will be heard on a date to be fixed by the Registrar.
Registrar to Dismiss for Delay
(7) If the moving party has not served and filed the motion record and other documents in accordance with subrule (4),
(a) the responding party may make a motion to the Registrar, on 10 days notice to the moving party, to have the motion dismissed for delay;
(b) the Registrar may serve notice on the moving party that the motion will be dismissed for delay unless the motion record and other documents are served and filed within 10 days after service of the notice.
(8) The Registrar shall make an order in Form 61J.1 dismissing the motion for delay, with costs, if the moving party,
(a) in the case of a motion under clause (7)(a), does not serve and file the motion record and other documents before the hearing of that motion, or within such longer period as a judge of the appellate court allows;
(b) in the case of a notice under clause (7)(b), does not serve and file the motion record and other documents within 10 days after the notice is served, or within such longer period as a judge of the appellate court allows.
RULE 62 APPEALS FROM INTERLOCUTORY ORDERS AND OTHER APPEALS TO A JUDGE
PROCEDURE ON APPEAL
Application of Rule
62.01 (1) Subrules (2) to (10) apply to an appeal that is made to a judge,
(a) from an interlocutory order of a master, under clause 17(a) of the Courts of Justice Act;
(b) from a certificate of assessment of costs, under clause 6(1)(c) or 17(b) or subsection 90(4) of that Act; or
(c) under any other statute, unless the statute or a rule provides for another procedure.
Time For Appeal
(2) An appeal shall be commenced by serving a notice of appeal (Form 62A) on all parties whose interests may be affected by the appeal, within seven days after the date of the order or certificate appealed from.
Hearing Date
(3) The notice of appeal shall name the first available hearing date that is not less than seven days after the date of service of the notice of appeal, and rule 37.05 (hearing date for motions) applies, with necessary modifications.
Notice of Appeal
(4) The notice of appeal (Form 62A) shall state the relief sought and the grounds of appeal, and no grounds other than those stated in the notice may be relied on at the hearing, except with leave of the judge hearing the appeal.
(5) The notice of appeal shall be filed in the court office where the appeal is to be heard, with proof of service, not later than three days before the hearing date.
Place of Hearing
(6) The appeal shall be heard at a place determined in accordance with rule 37.03 (place of hearing of motions).
Appeal Record
(7) The appellant shall, not later than three days before the hearing, serve on every other party and file, with proof of service, in the court office where the appeal is to be heard, an appeal record containing, in consecutively numbered pages arranged in the following order,
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
(b) a copy of the notice of appeal;
(c) a copy of the order or certificate appealed from, as signed and entered, and the reasons, if any as well as a further typed or printed copy of the reasons if they are handwritten; and
(d) such other material that was before the judge or officer appealed from as is necessary for the hearing of the appeal,
and a factum consisting of a concise argument stating the facts and law relied on by the appellant.
(8) The respondent shall serve on every other party
(a) at least four days before the hearing a factum consisting of a concise argument stating the facts and law relied on by the respondent: and
(b) at least two days before the hearing, any further material that was before the judge or officer appealed from and is necessary for the hearing of the appeal.
(8.1) The respondent's factum, and any further material, shall be filed with proof of service in the court office where the appeal is to be heard, at least two days before the hearing.
(9) A judge may dispense with compliance with subrules (7) and (8), in whole or in part, before or at the hearing of the appeal.
Abandoned Appeals
(10) Rule 61.14 applies, with necessary modifications, to the abandonment of an appeal under this rule.
MOTION FOR LEAVE TO APPEAL
Leave to Appeal from Interlocutory Order of a Judge
62.02(1) Leave to appeal to the Divisional Court under clause 19 (1) (b) of the Act shall be obtained,
(a) for motions properly made in Toronto, from a judge of the Divisional Court other than the judge who made the interlocutory order; and
(b) for motions properly made outside Toronto, from a judge other than the judge who made the interlocutory order.
(1.1) If the motion for leave to appeal is properly made in Toronto, the judge shall be a judge of the Divisional Court sitting as a Superior Court of Justice judge.
Time for Service of Motion
(2) The notice of motion for leave shall be served within seven days after the date of the order from which leave to appeal is sought or such further time as is allowed by the judge hearing the motion.
Hearing Date
(3) The notice of motion for leave shall name the first available hearing date that is at least three days after service of the notice of motion.
Grounds on Which Leave May Be Granted
(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
Motion Record
(5) On a motion for leave, the requirement of rule 37.10 respecting a motion record may be satisfied by,
(a) requisitioning that the motion record used on the motion that gave rise to the order from which leave to appeal is sought be placed before the judge hearing the motion for leave; and
(b) serving and filing a supplementary motion record containing the notice of motion for leave to appeal, a copy of the order from which leave to appeal is sought and a copy of any reasons given for the making of the order as well as a further typed or printed copy of the reasons if they are handwritten.
Factums Required
(6) On a motion for leave, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party, and file it with proof of service in the court office where the motion is to be heard, not later than 2 p.m. on the day before the hearing.
Reasons for Granting Leave
(7) The judge granting leave shall give brief reasons in writing.
Subsequent Procedure Where Leave Granted
(8) Where leave is granted the notice of appeal required by rule 61.04, together with the appellant's certificate respecting evidence required by subrule 61.05(1), shall be delivered within seven days after the granting of leave, and thereafter Rule 61 applies to the appeal.
RULE 63 STAY PENDING APPEAL
AUTOMATIC STAY ON DELIVERY OF NOTICE OF APPEAL
Payment of Money
63.01 (1) The delivery of a notice of appeal from an interlocutory or final order stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order.
Exception, Default Judgment
(2) The delivery of a notice of appeal from an order refusing to set aside a default judgment does not stay the default judgment, but it may be stayed by the order and rule 63.02 as if the appeal were from the default judgment.
Eviction Order under Tenant Protection Act, 1977
(3) The delivery of a notice of appeal from an interlocutory or final order made under the Tenant Protection Act, 1977 stays, until the disposition of the appeal, any provision of the order declaring a tenancy agreement terminated or directing that a writ of possession issue.
Co-operative Housing Orders
(4) The delivery of a notice of appeal from an interlocutory or final order made under the Co-operative Corporations Act stays, until the disposition of the appeal, any provision of the order declaring occupancy rights terminated or directing that a writ of possession issue.
Lifting Stay
(5) A judge of the court to which the appeal is taken may order, on such terms as are just, that the stay provided by subrule (1) or (2) does not apply.
STAY BY ORDER
By Trial Court or Appeal Court
63.02 (1) An interlocutory or final order may be stayed on such terms as are just,
(a) by an order of the court whose decision is to be appealed;
(b) by an order of a judge of the court to which a motion for leave to appeal has been made or an appeal has been taken.
Expiry of Trial Court Stay
(2) A stay granted under clause (l)(a) expires if no notice of motion for leave to appeal or no notice of appeal, as the case maybe, is delivered and the time for the delivery of the relevant notice has expired. (Feb 1, 1996)
Setting aside or Varying Stay
(3) A stay granted under subrule (1) may be set aside or varied, on such terms as are just, by a judge of the court to which a motion for leave to appeal may be or has been made or to which an appeal may be or has been taken.
Support or Custody Order
(4) A party who obtains a stay of a support or custody order shall obtain a certificate of stay under subrule 63.03(4) and file it forthwith in the office of the Director of the Family Responsibility Office.
EFFECT OF STAY
Generally
63.03 (1) Where an order is stayed, no steps may be taken under the order or for its enforcement, except,
(a) by order of a judge of the court to which a motion for leave to appeal has been made or an appeal has been taken; or
(b) as provided in subrules (2) and (3).
Entry of Order and Assessment of Costs
(2) A stay does not prevent the settling, signing and entering of the order or the assessment of costs.
Writ of Execution
(3) A stay does not prevent the issue of a writ of execution or the filing of the writ in a sheriff s office or land registry office, but no instruction or direction to enforce the writ shall be given to a sheriff while the stay remains in effect.
Certificate of Stay
(4) Where an order is stayed, the registrar of the court,
(a) that granted the stay; or
(b) to which an appeal has been taken,
shall issue, on requisition by a party to the appeal, a certificate of stay (Form 63A) and, when the certificate has been filed with the sheriff, the sheriff shall not commence or continue enforcement of the order until satisfied that the stay is no longer in effect.
(5) A requisition for a certificate of stay shall state whether the stay is under subrule 63.01(1) or by order under subrule 63.02(1), and if by order, shall set out particulars of the order.
(5.1) If an order of the Ontario Rental Housing Tribunal is stayed under subsection 25(1) of the Statutory Powers Procedure Act, the registrar of the court to which an appeal has been taken shall issue, on requisition by a party to the appeal, a certificate of stay (Form 63B) and, when the certificate has been filed with the sheriff, the sheriff shall not commence or continue enforcement of the order until satisfied that the stay is no longer in effect.
(5.2) A requisition for a certificate of stay under subrule (5.1) shall state that there is no order of the Ontario Rental Housing Tribunal that would prevent the automatic stay pending appeal.
Setting Aside Writ of Execution
(6) A judge of the court to which a motion for leave to appeal has been made or an appeal has been taken may set aside the issue or filing of a writ of execution where the moving party or appellant gives security satisfactory to the court.