Procedure, Leave, Standards of Review, and Costs
December 2024 · 14 min read
The Ontario Court of Appeal (ONCA) is the final appellate court in Ontario for most civil matters, with jurisdiction over Superior Court, Divisional Court, and consent appeals. ONCA procedure is governed by the Courts of Justice Act and Rules of Civil Procedure rr.61-63. This guide covers the civil appeal routes (as of right vs leave), the perfecting timeline, standards of review (Housen framework), stays pending appeal, fresh evidence (Palmer test), and costs on appeal.
Whether a civil appeal to ONCA requires leave depends on whether the order appealed from is final or interlocutory. Final orders are appealable as of right; interlocutory orders require leave of a judge of the Court of Appeal.
| Appeal Type | Basis | Rule | Deadline | Panel |
|---|---|---|---|---|
| Final order — as of right | Appeal as of right from final order of Superior Court judge or Divisional Court (on appeal from tribunal) | Courts of Justice Act s.6(1)(b); r.61.04 | 30 days from order | 3 judges (or 5 for constitutional questions) |
| Interlocutory order — with leave | Leave required for interlocutory orders (orders that do not finally determine the action) | Courts of Justice Act s.6(1)(b); r.61.03.1 | 15 days from order; motion heard in writing | Single judge or 3 judges on leave motion |
| Divisional Court — with leave | Appeal from Divisional Court on question of law; leave required if Div Ct was appellate court | Courts of Justice Act s.6(1)(a) | 15 days from Div Ct order | 3 judges |
| Consent appeal / stated case | Parties consent to appeal direct to Court of Appeal; or judge states case on question of law | Courts of Justice Act s.8 | By agreement or court order | 3 judges |
An appeal is perfected when the appellant serves and files all required documents within the prescribed deadlines. Failure to perfect may result in dismissal for delay on a respondent motion under r.61.13.
File and serve Notice of Appeal in Form 61A; pay filing fee; obtain appeal file number
Request transcript from court reporter; serve transcript order on all parties
Appellant drafts appeal book (pleadings, orders, exhibits) and compendium; serve draft on respondent; settle contents
File factum (max 30 pages without leave) with appeal book; serve on all parties; factum includes facts, issues, law, submissions, and relief sought
Respondent serves and files responding factum within 60 days of receiving appellant factum (max 30 pages without leave)
Registrar lists matter for hearing after perfection; complex appeals may require scheduling conference
The standard of review determines how closely ONCA scrutinizes the decision below. Housen v Nikolaisen (2002 SCC 33) establishes the framework: correctness for questions of law; palpable and overriding error for findings of fact and most mixed questions.
| Issue Type | Standard | Leading Case | Application |
|---|---|---|---|
| Questions of law | Correctness | Housen v Nikolaisen, 2002 SCC 33 | Statutory interpretation, legal elements of a cause of action, rules of evidence as legal propositions |
| Questions of fact | Palpable and overriding error | Housen v Nikolaisen, 2002 SCC 33 | Credibility findings, factual inferences, findings supported by evidence; appellate court rarely interferes |
| Mixed fact and law | Palpable and overriding error (unless legal component extricable) | Housen v Nikolaisen; King v Hershfield | Application of legal standard to facts; appellate deference unless legal error extractable |
| Discretionary orders | Deference; error in principle, significant misapprehension of facts, or clearly wrong result | Montague v Bank of Nova Scotia; Penney v Bell Canada | Costs awards, adjournments, case management decisions, interim orders |
| Contractual interpretation | Correctness (for legal interpretation of written contracts without ambiguity on key terms) | Sattva Capital v Creston Moly, 2014 SCC 53 (modified in Teal Cedar, 2017 SCC 32) | Commercial contract disputes; extricable errors of law attract correctness |
RJR-MacDonald three-part test applied by ONCA on motions to stay pending appeal:
Money judgments: stay more readily granted if there is serious issue and evidence respondent could not repay if appeal succeeds.
ONCA may admit fresh evidence on appeal under the Palmer test (Palmer v R, 1980 SCC):
All four criteria must be satisfied; appellate courts apply the test strictly to maintain finality of trial verdicts.
Under Rules of Civil Procedure r.61.04(1), a Notice of Appeal must be filed and served within 30 days of the order being appealed. For appeals requiring leave, the motion for leave must be filed within 15 days of the order (r.61.03.1). Extensions of time may be granted on a motion but require demonstrating the delay was not wilful, an arguable ground of appeal, and no serious prejudice.
The Ontario Court of Appeal applies the palpable and overriding error standard to findings of fact and questions of mixed fact and law (Housen v Nikolaisen). A palpable error is one that is obvious; an overriding error is one that goes to the core of the outcome. Pure questions of law attract the correctness standard. Discretionary decisions (costs, case management orders) attract a high degree of deference.
Under r.61.09, the appellant must perfect the appeal by serving and filing the appeal book and compendium, exhibits book, transcript of evidence (if any), and appellant factum within 60 days of filing the Notice of Appeal (or as extended). Failure to perfect within the deadline may result in dismissal for delay on a respondent motion. The registrar schedules the hearing after perfection.
A stay pending appeal under r.63.02 is granted if the moving party demonstrates: (1) a serious question to be tried on the appeal (not frivolous or vexatious); (2) irreparable harm if the stay is refused; and (3) the balance of convenience favours the stay. This is the RJR-MacDonald test. For money judgments, a stay is more readily granted if there is a serious issue and evidence the respondent could not repay if the appeal succeeds.
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