SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Transcription

1 Page 1 of 15 Home Feedback Site Map Français Home Court of Appeal for Ontario Superior Court of Justice Ontario Court of Justice Location Superior Court of Justice Divisional Court Appeal Information Package SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Appeal Information Package Nothing in this Information Package constitutes legal advice. The information is not intended to substitute for the litigant s responsibility to verify the Rules of Civil Procedure or other applicable legislation. This Appeal Information Package contains information about the Rules current at May 3, The Rules can change. Approved May 3, 2005 Internet Addresses of Interest For current information check the Government of Ontario Website: For more detailed information about the jurisdiction of the Divisional Court and the procedural rules governing appeals to the Divisional Court, please refer to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the Courts of Justice Act, R.S.O. 1990, Chap. C.43. These are available on-line at: Recent Divisional Court cases are available on-line: Judges Book of Authorities Index: Divisional Court Practice Directions are available on-line: General Information What is the Divisional Court? Table of Contents

2 Page 2 of 15 Where does the Divisional Court sit? Do I have to have a lawyer? What if I can t afford a lawyer? How do I find a lawyer? What are the filing fees for Divisional Court and how do I pay the fees? Do I have an automatic right of appeal to the Divisional Court? What types of appeals may be heard by the Divisional Court? Who hears Divisional Court appeals? When is leave to appeal required? How is leave obtained to appeal from an interlocutory order of a judge? How is leave to appeal obtained other than in appeals from interlocutory orders? How do I start my appeal? What is contained in a notice of appeal? What does an appellant s certificate respecting evidence contain? Can the respondent(s) file a certificate respecting evidence? Do I have to serve the documents first? Who do I serve and when? How do I serve my appeal? What if the respondent(s) won t accept the documents from me? What if the respondent(s) has a lawyer? Where must I file my appeal documents? When must I file my appeal documents? Do I have to provide proof of service? What if I don t serve within the 30-day limit? What if I don t file within the 10-day limit? What happens when I file my appeal? How do I order a transcript of evidence? How does an appeal affect an eviction order? How do I perfect my appeal? What is the time requirement for perfection? May I file further material after I have filed the certificate of perfection? How do I serve the documents required for perfection? Can I perfect my appeal and then serve the documents? What if I miss the deadline for perfection under the Rules? What may I do if I am unable to perfect on time? How many copies of these documents must I give to the court? When will my appeal be heard? What if I don t want to continue with my appeal? As the respondent, what materials need to be filed? When does the respondent s materials need to be filed? Are there any examples of documents available at the Divisional Court counter? Court Locations Glossary of terms Fee Schedule General Information

3 Page 3 of 15 Divisional Court Osgoode Hall 130 Queen Street West, Room 174 Toronto, ON M5H 2N5 TEL: FAX: Office Hours: 8:30 a.m. - 5:00 p.m. Monday through Friday This information guide is intended to help you prepare your appeal to the Divisional Court. Please note that court staff cannot provide legal advice or complete the documents to be filed on your appeal for you. Divisional Court staff must ensure that all court documents filed follow the requirements set out in the Rules of Civil Procedure. Counter staff may refuse to accept any documents if there is non-compliance with the Rules. What is the Divisional Court? The Divisional Court is a branch of the Ontario Superior Court of Justice. It is an appellate court, not a trial court. It hears appeals and applications for judicial review. It is your responsibility to ensure that the Divisional Court has jurisdiction over your appeal. Office staff cannot give advice on this. If you are unsure if your appeal lies to the Divisional Court, you should seek legal advice. Where does the Divisional Court sit? The Divisional Court sits in eight regions in the province including Toronto Region at various times throughout the year. See list attached for court locations. For sitting dates in the regions see: Do I have to have a lawyer? No. You may represent yourself in Divisional Court, but it is recommended that you seek legal advice. Agents may not appear on your behalf. What if I can t afford a lawyer? You may be eligible for Legal Aid. If you qualify, Legal Aid will give you a certificate to pay for, or to help pay for a lawyer. You may wish to contact the Legal Aid Ontario office at or or

4 Page 4 of 15 on the Internet at: How do I find a lawyer? You may call the Lawyer Referral Service of the Law Society of Upper Canada at or and they may provide you with the name of a lawyer in your area who will give you a half-hour consultation. There is a $6.00 fee, which is charged directly to your phone bill. What are the filing fees for Divisional Court and how do I pay the fees? Please see fee schedule attached. Fees may be paid by cash, certified cheque or money order payable to the Minister of Finance. Documents referred to in the fee schedule are not considered filed until the filing fee is paid in full. Do I have an automatic right of appeal to the Divisional Court? Not in all cases. In some appeals, the appellant must first obtain leave to appeal. You must verify whether leave is required, by consulting either the Courts of Justice Act or the applicable legislation that covers your appeal. What types of appeals may be heard by the Divisional Court? The Divisional Court may hear the following types of appeals: 1. Appeals from Final Orders of Judges Under s. 19(1) of the Courts of Justice Act, an appeal lies to the Divisional Court from: A "final order" of a Superior Court of Justice judge for a single or one-time payment of $25,000 or less, excluding costs A "final order" of a Superior Court judge for periodic payments of $25,000 or less for the 12 months following the first payment, excluding costs An order dismissing a claim for $25,000 or less An order dismissing a claim for more than $25,000 but where the judge or jury indicates that if the claim had succeeded, they would have awarded less than $25, Appeals from Interlocutory Orders An appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice only after the party who wants to appeal gets "leave" to do so. A motion must be brought asking the court for permission to bring the appeal. Refer to Rule of the Rules of Civil Procedure. 3. Appeals from Masters' Orders

5 Page 5 of 15 An appeal from a final order of a master or case management master is to the Divisional Court. 4. Combined Appeals from the Superior Court of Justice An appeal to the Superior Court of Justice and an appeal to the Divisional Court within the same proceeding may be combined and heard by the Divisional Court. If an appeal has been commenced in the Superior Court of Justice, a motion may be brought to transfer it to the Divisional Court for the purpose of a combined appeal. 5. Appeals from a Final Order of the Small Claims Court Under s. 31 of the Courts of Justice Act, an appeal lies to the Divisional Court from a final order of the Small Claims Court in an action: For the payment of money in excess of $500, excluding costs For the recovery of possession of personal property exceeding $500 in value. 6. Statutory Appeals The appeals described above are provided for in the Courts of Justice Act. However, other Ontario legislation also provides for appeals to the Divisional Court from the decisions of various tribunals and statutory decision makers. For example: Child and Family Services Act, R.S.O. 1990, c.c.11 Compensation for Victims of Crime Act, R.S.O. 1990, c.c.24 Health Insurance Act, R.S.O. 1990, c.h.6 Tenant Protection Act, 1997, S.O. 1997, c.24 Many professional disciplinary matters may also be appealed to the Divisional Court. For example: Architects Act, R.S.O. 1990, c.a.26 Ontario College of Teachers Act, 1996, S.O. 1996, c.12 Police Services Act, R.S.O. 1990, c.p.15 Regulated Health Professions Act, 1991, S.O. 1991, c.18 It is necessary to consult the specific legislation before deciding whether an appeal to the Divisional Court is the correct and appropriate appeal route. Who hears Divisional Court appeals? In general, the Divisional Court sits in panels of three judges of the Superior Court of Justice. However, in some circumstances, Divisional Court hearings may be held before a single judge.

6 Page 6 of 15 These circumstances include: Motions in the Divisional Court; Urgent or expedited matters; Appeals from a final order of a master or case management master; Appeals from an order made in Small Claims Court by a provincial judge or a deputy judge; Motions for leave to appeal; Requests for interim relief. When is leave to appeal required? Leave to appeal is required in two circumstances: 1. Leave to appeal may be required by the legislation under which the original decision was made 2. Under s. 19(1)(b) of the Courts of Justice Act, leave is required to bring an appeal from an interlocutory order of a judge The procedure for seeking leave to appeal is slightly different, depending upon whether leave is required under s.19 (1)(b) or under other legislation. How is leave obtained to appeal from an interlocutory order of a judge? To obtain leave from an interlocutory order of a judge, a motion must be brought in accordance with Rule of the Rules of Civil Procedure. A notice of motion for leave to appeal must be served within 7 days after the date of the order from which leave to appeal is sought and filed with proof of service thereafter. How is leave to appeal obtained other than in appeals from interlocutory orders? Where leave is required other than on an appeal from an interlocutory order, a motion for leave must be brought in accordance with Rule of the Rules of Civil Procedure. Unless the statute provides otherwise, a notice of motion for leave to appeal must be served within 15 days after the date of the order being appealed and filed within 5 days after service with proof of service. How do I start my appeal? You must prepare a notice of appeal (Form 61A) and an appellant's certificate respecting evidence (Form 61C). What is contained in a notice of appeal? The notice of appeal contains the relief sought, the grounds of the appeal and the basis for the

7 Page 7 of 15 Divisional Court s jurisdiction. What does an appellant s certificate respecting evidence contain? An appellant s certificate respecting evidence is a certificate that sets out only those portions of evidence that the appellant considers necessary for the appeal. Can the respondent(s) file a certificate respecting evidence? Yes, the respondent(s) has 15 days from the service of the appellant s certificate to serve its own certificate respecting evidence. Do I have to serve the documents first? Yes. The court office staff cannot accept your appeal documents unless they are properly served before filing. Who do I serve and when? You must serve all responding parties affected by the decision under appeal within 30 days after the date of the order being appealed. If you are serving on the 30th day, you must do so by 4 p.m. If you are appealing a decision of a tribunal or board, such as the Ontario Rental Housing Tribunal or the Criminal Injuries Compensation Board, you must also serve the relevant tribunal or board within the 30-day limit. The service must be to a named individual at the place of business of the tribunal or board. It is important to note however, that the statute allowing for the appeal may provide for different time lines. How do I serve my appeal? What if the respondent(s) won t accept the documents from me? The Rules of Civil Procedure for service are very precise and the court office staff must enforce them strictly in all circumstances. Service is to be done personally to a named individual. You may serve the documents yourself or employ one of the many process server agencies to do it for you. You will find such agencies in legal directories or in the Yellow Pages. If the respondent(s) is avoiding service you may mail the documents to their last known address, but this must be done by the 25th day as it takes 5 days to become effective under the Rules of Civil Procedure. What if the respondent(s) has a lawyer? The Rules allow for service to the named lawyer at his/her place of business or by fax transmission within the 30-day limit in lieu of personal service on the respondent(s). If you intend to serve in this manner, ensure first that the lawyer is still representing the respondent (s). If you are serving a lawyer on the 30th day you must do so by 4 p.m. A sworn affidavit of service (and, if serving by fax, a fax confirmation sheet showing successful transmission) must be provided to the court office staff at the time of filing. Service by courier to a lawyer is also

8 Page 8 of 15 acceptable. It becomes effective on the second day following the day the courier was given the document to deliver. Copies of all waybills must be submitted with your affidavit of service. Where must I file my appeal documents? In general, Divisional Court appeals are filed in the regional center where the hearing or other process took place. This may not be the case if the parties agree otherwise. See s. 20(1) of the Courts of Justice Act. When must I file my appeal documents? You must file the appeal documents (notice of appeal and appellant s certificate) within 10 days after service of these documents on all named respondents. Do I have to provide proof of service? Yes. This is done by way of an affidavit of the individual who effected the service, (you or someone on your behalf). There are sample affidavits of service for your use and you may make as many additional copies as you require. It is a criminal offence to falsely swear an affidavit. What if I don t serve within the 30-day limit? You are out of time for service as provided for in the Rules of Civil Procedure and the court office staff cannot accept your appeal. You may obtain the written consent of the respondent (s) for late service OR bring a motion before a single judge of the Divisional Court asking for an extension of time. What if I don t file within the 10-day limit? You may obtain the written consent for late filing from the respondent(s) OR bring a motion for an extension of time before a single judge of the Divisional Court. What happens when I file my appeal? You will be given a Divisional Court file number which must appear on all further documents to be served and filed. Have this file number at hand when making telephone or personal enquiries concerning your file. How do I order a transcript of evidence? It is your responsibility to go back to the court/tribunal/board office from which you are appealing and find out whether they made a recording of the evidence at your hearing. Some tribunals and boards prepare a record of proceedings instead of a transcript of evidence. If a reporter was present at your hearing, it is your responsibility to order the transcript from that reporter.

9 Page 9 of 15 Unless you have special directions from a judge, you must obtain a Certificate of Ordering Transcript and file a copy of it with the Divisional Court office within 30 days from the date the notice of appeal was filed. In the case of the Ontario Rental Housing Tribunal, on payment of a fee, you may obtain a tape recording or CD of the hearing. You must then take it to a certified court reporting service to have a transcript produced. Such services may be found in legal directories or in the Yellow Pages. It is your responsibility to ensure the transcript is ordered and produced in a timely manner. Failure to do so will jeopardize the hearing of your appeal. How does an appeal affect an eviction order? On an appeal from the Ontario Rental Housing Tribunal there is an automatic stay of any eviction order pending disposition of the appeal. Upon properly filing your notice of appeal and appellant s certificate respecting evidence, you may request a Certificate of Stay. You should ensure that the original sealed copy is filed with the Sheriff s Office before your date of eviction. The Sheriff s Office is located at The Atrium on Bay, 40 Dundas Street West, 4th Floor, Room 424, Toronto, ( ). How do I perfect my appeal? Refer to Rule of the Rules of Civil Procedure. You must ensure that the appeal book and compendium (one document), exhibit book, factum and transcript of evidence (if applicable) are prepared according to the format set out in the Rules. These documents must be served on all affected respondents according to the Rules and then filed with the Divisional Court office with proper proof of service. In order to complete the perfection of your appeal, a certificate of perfection must be filed. What is the time requirement for perfection? When there is no transcript of evidence within 30 days of filing your notice of appeal, the Rules call for perfection of an appeal. In cases where there is a transcript of evidence, you must perfect within 60 days of the completion of the transcript. Failure to perfect within these timelines could result in the dismissal of your appeal for delay. Refer to Rule May I file further material after I have filed the certificate of perfection? No further documents except for a book of authorities may be served and filed by the appellant after perfection without an order of a judge of the Divisional Court.

10 Page 10 of 15 How do I serve the documents required for perfection? Serve them personally on all named respondents or to their lawyer at his or her place of business. In lieu of personal service you may mail the documents. If you are serving a lawyer you may effect service by courier. Can I perfect my appeal and then serve the documents? No. All documents must be served before they are filed. Affidavits of service are required at the time of filing. What if I miss the deadline for perfection under the Rules? Your appeal may be dismissed for delay on ten days written notice to you. This can be effected by any of the individual respondents or by the Divisional Court Registrar according to the Rules of Civil Procedure. What may I do if I am unable to perfect on time? There are two options: Obtain the respondent s consent in writing for an extension of time to perfect OR bring a motion before a single judge of the Divisional Court asking for an extension of time to perfect the appeal. How many copies of these documents must I give to the court? Appeals from the Small Claims Court or from a master are heard by a single judge; therefore, one copy of all documents is required. All other appeals are heard by a panel of three judges, therefore, three copies of all documents are required with two exceptions: only one copy of the transcript of evidence and one exhibit book is necessary. When will my appeal be heard? Shortly after you perfect your appeal the Divisional Court office will contact you and any of the named respondents regarding possible hearing dates. What if I don t want to continue with my appeal? You may abandon your appeal or cross-appeal by delivering a notice of abandonment (Form 61K). This notice must be served and filed with proof of service. You will be "deemed" to have abandoned the appeal if, after serving a notice of appeal or cross-appeal, you do not file it within 10 days of service. As the respondent, what materials need to be filed?

11 Page 11 of 15 The materials required are a respondent s factum bound front and back in green covers and a respondent s compendium bound front and back in yellow covers. An electronic version of the factum is also required. For the contents of these documents, refer to Rule of the Rules of Civil Procedure. When does the respondent s materials need to be filed? The respondent has 60 days from the date of service of the appellant s documents to serve the appellant and any other respondents with the responding materials and then file the documents with the Divisional Court office with proper proof of service. Are there any examples of documents available at the Divisional Court counter? Yes. You may ask the court staff to provide examples of documents relevant to your appeal. Court Locations Toronto Region Divisional Court, Osgoode Hall 130 Queen St. West Room 174 Toronto, ON M5H 2N5 Tel: Fax: North East Region Divisional Court, Superior Court of Justice 155 Elm St. Sudbury, ON P3C 1T9 Tel: Fax: Central East Region Divisional Court, Superior Court of Justice 50 Eagle St. West Newmarket, ON L3Y 6B1 Tel: x 2 Fax: Central West Region Divisional Court, Superior Court of Justice 7755 Hurontario Street Brampton, ON L6W 4T6 Tel: Fax:

12 Page 12 of 15 Central South Region Divisional Court, Superior Court of Justice 45 Main St. East Hamilton,ON L8N 2B7 Tel: x 3628 Fax: South West Region Divisional Court, Superior Court of Justice 80 Dundas St. East London, ON N6A 2P3 Tel: Fax: East Region Divisional Court, Superior Court of Justice 161 Elgin St. Ottawa, ON K2P 2K1 Tel: Fax: North West Region Divisional Court, Superior Court of Justice 277 Camelot St. Thunder Bay, ON P7A 4B3 Tel: x 6046 Fax: Glossary of Terms Affidavit of Service is a statement sworn or affirmed indicating that the document to which it refers was delivered to the opposing party and indicating when, where and how such delivery was made. Appeal Book and Compendium is one document and it must include copies of all pertinent documents that were before the court/board/tribunal from which you are appealing. It must also contain any excerpts from transcripts, copies of exhibits or other relevant documents referred to in the appellant s factum. Refer to Rule for the contents required and in which order they are to be arranged. A copy of this rule is available at the counter. In addition to the outline in Rule 61.10, your appeal book and compendium (one document) must be bound in buff coloured covers front and back and have all pages numbered consecutively. The final document in an appeal book and compendium must be the certificate of completeness. An example is available at the counter. Book of Authorities of the appellant is a document bound front and back with white covers. It contains copies of any legal cases or other authorities which are relevant to your appeal. The relevant passages to which you intend to refer must be marked in some manner by either

13 Page 13 of 15 highlighting, underlining or using sidebars. This document does not require proof of service for filing with the court office; however, you should still serve a copy to all named respondents and the board/tribunal from which you are appealing. Certificate of Perfection is a document that certifies that the appeal book and compendium (one document), the exhibit book, the transcripts (if applicable) and the appellant s factum have been served and filed. It includes the name, address and telephone number of the respondent(s) or of his/her lawyer. Certificate of Stay is a document that certifies under subsection 25(1) of the Statutory Powers Procedure Act, that the order of the Ontario Rental Housing Tribunal has been stayed by an appeal to the Divisional Court. Exhibit Book is a document that is required for your appeal and must contain copies of all pertinent exhibits filed before the court/board/tribunal from which you are appealing. Refer to Rule for further information. The exhibit book must be bound front and back in buff covers. All pages are to be numbered consecutively. Factum is a document which contains a statement of facts and an outline of the legal points on which the appellant bases his or her case. The appellant must type his or her name at the end of the factum and sign it. It may not exceed 30 pages in length without leave of the court. The appellant s factum must be bound front and back in white covers. Refer to Rule for the contents required and the order in which they are to be arranged. Every factum must include a Schedule A, which contains a list of the authorities referred to and a Schedule B, which contains the text of all relevant provisions of statutes, regulations and by-laws. In the event that you are not relying on any authorities, or statutes, regulations or by-laws Schedule A and Schedule B should each indicate None. Interlocutory Order is an order that is not final. An order is interlocutory if it does not finally dispose of the rights of the parties in the court from which the proposed appeal is to be brought. Judges Book of Authorities There is a Judges' Book of Authorities listing authorities frequently relied on in Divisional Court. This list is available in the Divisional Court office at Toronto and at the office of each Regional Registrar. In preparing books of authorities, it is not necessary to include authorities contained in the Judges' Book of Authorities. However, extracts from those authorities, which you intend to refer the court to, should be included in the factum or book of authorities. The index is found at SCHEDULE OF FEES (SUPERIOR COURT OF JUSTICE & COURT OF APPEAL) O. Reg. 293/92 Amended by O. Reg. 272/05

14 Page 14 of 15 EFFECTIVE JUNE 1, The following fees are payable, except in respect of proceedings to which section 1.2 applies: 1. On the issue of, i. a statement of claim or notice of action $ ii. a notice of application iii. a third or subsequent party claim iv. a statement of defence and counterclaim adding a party v. a summons to a witness vi. a certificate, other than a certificate of a search by the registrar required on an application for a certificate of appointment of estate trustee, and not more than five pages of copies of the Court document annexed for each additional page 2.00 vii. a commission viii. a writ of execution ix. a notice of garnishment (including the filing of the notice with the sheriff) 2. On the signing of, i. an order directing a reference, except an order on requisition directing the assessment of a bill under the Solicitors Act ii. an order on requisition directing the assessment of a bill under the Solicitors Act ii. A. if obtained by a client ii. B. if obtained by a solicitor iii. a notice of appointment for the assessment of costs under the Rules of Civil Procedure 3. On the filing of, i. a notice of intent to defend ii. if no notice of intent to defend has been filed by the same party, a statement of defence, a defence to counterclaim, a defence to crossclaim or a third party defence iii. a notice of appearance iv. a notice of motion served on another party, a notice of motion without notice, a notice of motion for a consent order or a notice of motion for leave to appeal, other than a notice of motion in a family law appeal v. a notice of return of motion, other than a notice of return of motion in a family law appeal vi. in a family law appeal, a notice of motion served on another party, a notice of motion without notice, a notice of motion for a consent order or a notice of return of motion

15 Page 15 of 15 vii. a notice of motion for leave to appeal in a family law case viii. a requisition for signing of default judgment by registrar ix. a trial record, for the first time only x. a notice of appeal or cross-appeal from an interlocutory order xi. a notice of appeal or cross-appeal to an appellate court of a final order of the Small Claims Court xii. a notice of appeal or cross-appeal to an appellate court of a final order of any court or tribunal, other than the Small Claims Court or the Consent and Capacity Board xiii. a request to redeem or request for sale xiv. an affidavit under section 11 of the Bulk Sales Act xv. a jury notice in a civil proceeding For obtaining an appointment with a registrar for settlement of an order 5. For perfecting an appeal or judicial review application For the making up and forwarding of papers, documents and exhibits and the transportation costs 7. For making copies of documents, i. not requiring certification, per page 2.00 ii. requiring certification, per page For the inspection of a court file, i. by a solicitor or party in the proceeding No charge ii. by a person who has entered into an agreement with the Attorney 4.00 General for the bulk inspection of court files, per file iii. by any other person, per file For the retrieval from storage of a court file For the taking of an affidavit or declaration by a commissioner for taking affidavits 11. For a settlement conference under rule of the Rules of Civil Procedure Home Court of Appeal for Ontario Superior Court of Justice Ontario Court of Justice Feedback Ontario Judicial Council Justices of the Peace Review Council Judicial Appointments Advisory Committee Notices and Rule Changes Ontario Statutes and Regulations Ontario Justice Education Network Ontario Court Addresses Links Site Map Français This website has been created and is maintained by the Judges' Library. Website Policies.