Top 5 Mistakes When Seeking Leave to Appeal in Ontario

In Ontario, litigants do not have an inherent right to appeal a decision.

The jurisdiction to appeal civil proceedings derives from statute, usually the Courts of Justice Act, R.S.O. 1990, c.C.43 (the “CJA”), in conjunction with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

An appeal from a civil matter lies either to the Divisional Court (which is a branch of the Ontario Superior Court of Justice) or the Ontario Court of Appeal.

Which Court will hear the appeal typically depends on whether the underlying order is interlocutory or final, or whether the governing Act directs which appellate Court will hear the appeal.

Not all matters can be directly appealed to the Divisional Court or the Court of Appeal.

In order to discourage frivolous appeals or reduce the number of appeals heard by the Courts, the CJA, the Rules, or an Act may require that the party seeking to advance an appeal obtain permission, or “leave”, of the Court first, usually by way of a motion for leave to appeal.

If the appellate Court decides that it wants to hear an appeal, leave will be granted, in which case the appeal may proceed.

If, however, the contrary is true, leave to appeal will be denied and the underlying order is effectively affirmed.

Motions for leave to appeal are fraught with potential landmines that could derail, or in some cases, be fatal to the right of litigants to pursue their appeal.

The unversed, including lawyers who may have argued the underlying proceeding, should tread carefully.

Below is a list of some of the most common errors made by parties seeking leave to appeal.

1. Failing to Determine Whether Leave to Appeal is Required

Following a decision at a lower Court or tribunal, one of the most important tasks of the appellate litigator is to determine both when the appeal has to be started and whether leave to appeal is required.

Where the appeal is from the decision of a tribunal or arbitrator, the constituent statute may specify that an appeal lies to either the Divisional Court or the Court of Appeal with leave.

If so, a motion for leave to appeal will have to be brought to that appellate Court.

The Rules provide that motions for leave to appeal be brought promptly, usually within 15 days (see Rules 61.03(1)(b) or Rules 61.03.1(3)(a)) and, in some cases, within 7 days.

Where the proposed appeal is from a decision of a lower Court in Ontario, the proposed appellant may also have to determine if the underlying Court order is final or interlocutory – this will establish whether leave to appeal is required and to which Court the motion for leave to appeal must be brought: see, for example, the CJA at ss.6(1)(a) & 19(1)(b).

2. Failing to Recognize that Motions for Leave to Appeal are typically heard “in writing”

The bulk of motions for leave to appeal in Ontario are heard in writing: see, for example, Rules 61.03.1 & 62.02(2), Consolidated Practice Direction for Divisional Court Proceedings at Part II: Motions for Leave to Appeal, and Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario at section 7.2.7.

There may be rare circumstances in which the Court will require the parties to argue their motions for leave in an oral hearing, following the delivery of written submissions.

That being said, it is important to put one’s best foot forward in the written materials on any motion for leave to appeal – this is very likely the only opportunity for both the moving party and the responding party to persuade the Court of why the motion for leave to appeal should be granted or dismissed.

3. Failing to Understand the Policy Underlying Leave to Appeal Motions

The Rules or a statute may require leave to appeal for good reason: a leave motion prevents frivolous appeals and forces the parties to get on with a hearing on the merits.

This is why interlocutory orders, in particular, require leave to appeal. The Courts want to discourage appellate review of procedural steps in the litigation, such as pleadings motions, motions for production, or any other aspect of the case that does not address the substance of the parties’ dispute.

Moreover, motions for leave to appeal protect scarce judicial resources. They ensure that the Ontario Divisional Court and Court of Appeal do not have to address a flurry of appeals from simple interlocutory matters. Leave to appeal promotes a gatekeeping function, reserving appellate litigation for the most important aspects of a case.

Motions for leave to appeal also promote fairness in the appellate process. One of the frequent considerations on a motion for leave is whether the proposed appeal represents a “second appeal” because, for example, the Divisional Court already exercised appellate jurisdiction at first instance: Minister of Transportation v. 1520658 Ontario Inc., 2010 ONCA 32 at para. 11, citing United Glass and Ceramic Workers of North America (Re), 1973 CanLII 459 (Ont. C.A.); Sault Dock Co. and Sault Ste. Marie (City) (Re), [1973] 2 O.R. 479. In such cases, the appellant’s right to a further appeal to the Court of Appeal is circumscribed by the requirement to obtain leave.

Leave to appeal also holds parties to their chosen form of dispute resolution. Under section 45(1), Ontario’s domestic Arbitration Act, 1991, S.O. 1991, c.17, for instance, if the parties’ arbitration agreement does not deal with questions of law, a party may appeal an arbitral award to the Courts on a question of law, but only with leave and only if specific requirements are met. This ensures that, to the greatest extent possible, arbitral awards remain final and binding on the parties, given that they have chosen to arbitrate their dispute, rather than proceed under the Court process. The same line of reasoning applies to motions for leave to seek judicial review of a construction adjudication decision under Part II.1 of Ontario’s Construction Act, R.S.O. 1990, c.C.30.: see Pasqualino v. MGW-Homes Designs Inc., 2022 ONSC 5632, at paras. 49-52.

Accordingly, it is critical that a proposed appellant consider the underlying policy for the motion for leave to appeal, before embarking on it.

Understanding why the Court requires leave informs the merits of such a motion and whether it is worth pursuing leave at all.

4. Failing to Address the Public Interest Component of the Potential Appeal

Most tests for leave to appeal include a public interest component, i.e. a requirement that the moving party show that their proposed appeal will raise issues of importance not just to the parties themselves, but to the Ontario public at large: Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONCA 494, at para. 12, citing Iness v. Canada Mortgage and Housing Corporation (2002), 2002 CanLII 15707 (Ont. C.A). at para. 4.

This requirement promotes the appellate function of the Court, which is to advance the law of Ontario and resolve legal issues that will have precedential value for Ontarians.

Appeals that focus narrowly on the interests of the parties or exclusively on questions of fact, while certainly important, lack the public policy dimension that leads to the evolution of the law. These sorts of cases are generally not the type appellate Courts will want to adjudicate.

5. Failing to Seek a Stay Pending a Motion for Leave to Appeal

Under Rule 63 of the Rules, the commencement of a motion for leave to appeal will typically not stay the enforcement of the underlying tribunal or Court order.

This is usually the case whether or not the relief awarded by the underlying order is for monetary or non-monetary relief.

Accordingly, a party who seeks leave to appeal an underlying order will also likely have to bring a parallel motion to stay the enforcement of the underlying order pending the resolution of the motion.

Whether the Court will grant such a stay depends on a range of factors, including whether the appeal raises a serious issue to be tried, whether the moving party will suffer irreparable harm if a stay is denied, and the balance of convenience: see, for example, Thirlwell v. College of Physicians and Surgeons of Ontario, supra at paras. 8-9.

A failure to obtain a stay of the underlying order in a timely manner could prove fatal and render both the motion for leave to appeal, and any proposed appeal thereafter, moot.

Marco P. Falco is a partner in the Litigation and Dispute Resolution Department at Torkin Manes LLP who focuses on civil appellate litigation and judicial review. You may contact Marco about your proposed motion for leave to appeal, or appeal generally, at mfalco@torkin.com. Please be aware that a conflict search will need to be conducted before any information involving your matter can be discussed.