Ontario Court of Appeal: When and How to Appeal a Decision

What Can Be Appealed to the ONCA?

• Final orders of the Superior Court of Justice (civil and family)
• Criminal conviction or sentence appeals from the Superior Court (indictable offences)
• Divisional Court decisions (in certain circumstances)
• Statutory appeals specifically directed to the ONCA (e.g., some regulatory matters)

Interlocutory (non-final) orders generally go to the Divisional Court, not the ONCA.

Do I Need Leave to Appeal?

For some matters, you have an automatic right to appeal. For others, you must first obtain leave (permission) from the ONCA. Leave is required for:

• Appeals from interlocutory orders
• Appeals in Small Claims matters (if going above the Divisional Court)
• Some family law orders
• Sentence appeals by the Crown in some circumstances

A leave panel of two ONCA justices reviews the leave materials in writing. Leave is granted if the appeal raises issues of public importance or has reasonable prospects of success.

Grounds of Appeal — What the Court Reviews

An appellate court does not retry the case. It reviews the lower court's decision for:

• Errors of law — the judge applied the wrong legal test (reviewed on a correctness standard)
• Errors of fact — the judge's factual findings were "palpably wrong" or had no evidentiary basis (reviewed on a palpable and overriding error standard — very deferential)
• Errors of mixed fact and law — also reviewed on palpable and overriding error unless a legal error is clearly extracted

The Appeal Process Step by Step

1. Notice of Appeal: Filed within 30 days of the order (civil) or as prescribed. Missing the deadline requires a motion for extension.
2. Ordering the Appeal Record: Request the transcript of the trial proceedings from the court reporter. This can take months and is expensive.
3. Perfecting the Appeal: File the Appeal Book (record, exhibits, transcript), Appellant's Factum, and Book of Authorities within the prescribed deadlines.
4. Respondent's Factum: Opposing party files their responding factum within 60 days.
5. Hearing: Panel of three justices (criminal or civil). Each side typically has 30 minutes of oral argument. The court may ask questions extensively.
6. Decision: May be released from the bench (immediately) or reserved (written reasons issued later, sometimes months later).

The Factum

The factum is the core written argument. It contains: a statement of facts, issues on appeal, legal argument, and the order requested. The ONCA's practice directions limit factums to30 pages (civil) unless leave for additional pages is obtained. Quality of the factum is the most important factor in appellate success.