How the Ontario Court of Appeal Process Works: A Step-by-Step Guide

If you are considering an appeal in Ontario, understanding the process can help reduce anxiety and set realistic expectations. The Ontario Court of Appeal is the province's highest court, hearing appeals from the Superior Court of Justice and, in some cases, from administrative tribunals. Here is what you can expect at each stage.

Step 1: Filing the Notice of Appeal

The appeal process begins with filing a Notice of Appeal at the Court of Appeal, typically within 30 days of the order being appealed. The notice must identify the specific order being appealed, the grounds for appeal, and the relief sought. Your appellate lawyer will also need to order the transcript of the trial proceedings from the court reporter, which forms part of the appeal record.

Step 2: Perfecting the Appeal

After the notice is filed, the appellant has a deadline to perfect the appeal by filing the appeal record and factum (the written argument). The appeal record includes the trial decision, the notice of appeal, relevant pleadings, and the transcripts. The factum is the most critical document — it sets out the facts, the issues, the legal argument, and the relief sought. A well-crafted factum can be the difference between winning and losing an appeal.

Step 3: The Respondent's Materials

Once the appellant files their materials, the respondent (the other party) files their own factum responding to the appeal arguments. The respondent may also file a cross-appeal if they believe the trial judge made errors that affected them.

Step 4: The Oral Hearing

Appeals at the Court of Appeal are heard by a panel of three judges. Oral argument typically lasts between 30 minutes and a full day, depending on the complexity of the case. The judges will have read the factums and record in advance, so oral argument focuses on the strongest points and responding to the judges' questions. Experienced appellate counsel know how to read the panel, adapt their argument, and address the court's concerns in real time.

Step 5: The Decision

The court may deliver its decision from the bench immediately after argument, or reserve its decision and release written reasons at a later date. If the appeal is successful, the court may overturn the trial decision, substitute its own decision, or order a new trial. Costs are typically awarded to the successful party.

Motions During the Appeal

Various motions can arise during the appeal process. The most common are motions to extend time (if the 30-day deadline was missed), motions for a stay of execution (to prevent the trial judgment from being enforced while the appeal is pending), and motions to introduce fresh evidence. Each has its own legal test and procedural requirements. A motion for a stay of execution, for example, requires showing that there is a serious issue to be tried on appeal, that irreparable harm would result without a stay, and that the balance of convenience favours granting it.

How Long Does an Appeal Take?

The timeline varies depending on the complexity of the case and the court's schedule. A straightforward appeal at the Ontario Court of Appeal typically takes 8 to 14 months from filing to hearing. More complex appeals, or those involving fresh evidence applications, can take longer. Criminal appeals often move faster than civil ones. The Divisional Court, which hears many administrative law appeals, generally has a somewhat shorter timeline.