Guide to procedures in Divisional Court appeals

This guide is provided for informational purposes only. It is not a substitute for professional legal advice. You should always check the Rules of Civil Procedure, the Courts of Justice Act, and practice directions published by the Superior Court of Justice to ensure the information you are relying on is current.

Introduction

This guide provides information for people who are considering an appeal to the Divisional Court, or who are already involved in an appeal. There are many rules and procedures you must follow, whether you are a self-represented litigant or represented by a lawyer. This guide will help you take the right steps at each stage in your Divisional Court case, but it does not provide legal advice. It is recommended that all parties seek legal advice, where possible.

Depending on the nature of your case, a variety of statutes or regulations may be important. Ontario’s statutes and regulations are available online.

The Rules of Civil Procedure (rules), a regulation under the Courts of Justice Act, govern proceedings in the Divisional Court.

Forms that are required for Divisional Court proceedings are set out under the Rules and are available online.

For appeals of orders made in family law cases, some of the timelines set out in the Rules are modified by the Family Law Rules, the rules of procedure for family law cases.

Overview of the Divisional Court process

The Divisional Court is a branch of the Superior Court of Justice of Ontario with a special focus. It only hears certain types of appeals and applications for judicial review.

This guide does not address applications for judicial review.

Divisional Court hearings

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. These circumstances can include:

• motions in the Divisional Court, excluding motions for leave to appeal
• urgent or expedited matters
• appeals from a final order of an associate judge
• appeals from a final order made in the Small Claims Court

Unless ordered otherwise, single judge appeals in the Divisional Court are heard by a Divisional Court judge sitting at the Superior Court of Justice location where the matter being appealed took place.

Divisional Court locations

Divisional Court appeals before a panel of three judges are heard at eight regional centres throughout the province:

Note: This list is not intended to be exhaustive.

Legal representation in Divisional Court

In Divisional Court, you may either represent yourself or be represented by a lawyer. It is recommended that you hire a lawyer to represent you. At minimum, you should seek legal advice from a lawyer to help you prepare for your case.

Learn more about how to find a lawyer.

Helpful resources

Learn more about accessibility and requesting an accommodation.

Learn more about the rights of French-speaking individuals in the Ontario justice system.

Apart from French and visual language interpretation (such as American Sign Language), the court office will pay for in-court interpretation in any language only if you apply for and are given a fee waiver certificate.

If you make a request, the court will translate written documents filed in French into English or English into French. You must arrange and pay for translation of written documents into other languages.

You may request publications (for example, a guide or form) in an alternative format from the courthouse Accessibility Coordinator. For contact information, see the list of Ontario courthouses.

Glossary of important terms

Below are some key definitions of words you will need to understand if you are making, or responding to, an appeal in Divisional Court.

Affidavit

A written statement or declaration of facts that are sworn or affirmed to be true. The person swearing or affirming the affidavit must do so in the presence of a person who is authorized to take affidavits. Persons authorized to take affidavits include lawyers, paralegals, notary publics, commissioners for taking affidavits (sometimes called commissioners of oaths) and court staff in the court location where you want to file the affidavit. An Affidavit of Service is a special type of affidavit that is used to prove how and when documents were served.

Appeal Book and Compendium

A collection of the documents relating to your appeal that are all bound together.

Appellant

A party who starts an appeal. The word “appellant” may refer to either party from the lower proceeding (for example, plaintiff or defendant, applicant or respondent), depending on who appealed the decision.

Book of Authorities

A bound volume of any legal cases or other authorities (for example, legislation) which are relevant to the appeal. The passages the party intends to use must be marked in some manner by either highlighting, underlining or using sidebars.

CaseLines

An online document-sharing platform used by parties, judges and court staff to access documents during some court hearings, including Divisional Court appeals.

Certificate of Perfection

A document filed by the appellant, certifying that the Appeal Book and Compendium, the Exhibit Book, the transcript (if any) and the Appellant’s Factum have been served and filed. It includes the name, address and telephone number of the appellant(s) (or their lawyer) and the respondent(s) (or their lawyer).

Certificate of Stay

A document certifying that an order of a court or tribunal has been stayed (postponed) by an appeal to the Divisional Court.

Deponent

A person making a statement under oath.

Deliver or Delivery

To serve and file with proof of service.

Exhibit Book

A bound volume containing copies of exhibits from the original hearing that are necessary for the consideration of an appeal.

Grounds

The reasons or basis upon which the appellant claims the appeal should be allowed.

Factum

A bound document containing a short summary of the facts, the law and the arguments made in support of, or in response to, an appeal.

File (v.)

To submit to the court to be added to the court record.

Interlocutory Order

An order that is not final. An order is interlocutory if it does not dispose of the rights of the parties in the proceeding on a final basis. In family law matters, a temporary order is an interlocutory order.

Judgment

A decision made by a court or tribunal resolving a dispute.

Jurisdiction

The power of the court to hear a particular matter. Sections 19 and 31 of the Courts of Justice Act set out the appellate jurisdiction of the Divisional Court. However, provisions of other that are relevant in particular cases may modify the general provisions of the Courts of Justice Act.

Leave (n.)

Permission granted by the court to do something. For example, before appealing an order to the Divisional Court, leave may be required.

Motion

A motion is a formal court procedure that is used to request certain kinds of orders from a judge. Examples include:

• motions for leave (permission) to appeal
• motions to obtain directions (instructions) on how to proceed in a case

Moving Party

The person or party brining the motion.

Order (n.)

A formal decision made by a court or tribunal. If an order resolves the proceeding, it can also be called a judgment.

Panel

A group of three judges of the Divisional Court assigned to hear and decide an appeal together.

Party

A participant in the appeal, usually either an appellant or a respondent.

Perfecting an Appeal

An appeal is perfected when all the documents necessary for the hearing of the appeal have been served and filed with the court within the time periods set out in the Rules. Once the appeal is perfected, the Divisional Court can list the appeal for hearing. See also Certificate of Appeal.

Person

A human being or an entity (such as a corporation) that is recognized by law as having the legal rights and duties of a human being.

Proof of Service

The evidence you submit to the court to prove that your documents were properly delivered to on the other party or parties. A common type of proof of service is an Affidavit of Service (Form 16B). Rule 16.09 of the Rules of Civil Procedure describes how to prove service.

Relief Sought

What a party is asking the court to do.

Respondent

The party who responds to (opposes) the appeal. In an appeal, the word “respondent” may refer to either party from the lower proceeding (for example, plaintiff or defendant, applicant or respondent), depending on who appealed the decision.

Serve or Service/Serving

Delivering a document to another person in the formal way(s) the rules of court require or allow. Typically, you can choose to serve a document yourself or arrange for someone else to serve the document. Rule 16 of the Rules of Civil Procedure describes the ways that documents can be served.

Solicitor

In Ontario, this is another word for a lawyer.

Tips on completing forms in Divisional Court

1. Write/print neatly and clearly These are court documents. All court forms must be printed or handwritten clearly. It may cause delays if your forms cannot be read.
2. The numbered forms required under the Rules of Civil Procedure are available on the Ontario Court Forms website. It is your responsibility to ensure that the formatting of the form complies with the rules (see for example Rule 4.01 with respect to formatting).
3. Many of the forms contain the phrase “General heading.” The general heading is similar to a special title or header. For appeals, the general heading is in the format prescribed in Form 61B. You must insert the general heading content wherever this phrase appears on other forms.
4. Forms sometimes contain alternative, optional, or explanatory information in parentheses (round brackets). You can keep the text that applies to your situation and delete the text that does not apply.
5. How to count days for timelines in the rules:

When calculating timelines in the rules, count the days by excluding the first day and including the last day of the period. If the last day of the period of time falls on a “holiday”, the period ends on the next day that is not a “holiday”. If the period is less than seven days, skip any “holidays”.

Holidays are defined in the rules as:

• any Saturday or Sunday
• New Year’s Day
• Family Day
• Good Friday
• Easter Monday
• Victoria Day
• Canada Day
• Civic Holiday
• Labour Day
• Thanksgiving Day
• Remembrance Day
• Christmas Day
• Boxing Day
• any special holiday proclaimed by the Governor General or the Lieutenant Governor

Note: If New Year’s Day, Canada Day or Remembrance Day falls on a Saturday or Sunday, the following Monday is a holiday under the Rules. If Christmas Day falls on a Saturday or Sunday the following Monday and Tuesday are holidays. If Christmas Day falls on a Friday, the following Monday is a holiday.

6. You can file your documents in person, by mail or electronically (as permitted by the Court). If you file documents by mail, the date of filing will be the date the documents are stamped upon receipt by the court office. If the court office does not receive the documents, they will be considered not to have been filed, unless the court orders otherwise (see Rule 4.05). All applicable fees and proof of service must be included with the documents when you mail them. Documents cannot be faxed to the court. Keep a copy of all documents you submit to the court for your records.
7. Documents that are filed electronically must have specific File names. See the list published at Part V. G of the Superior Court of Justice Consolidated Practice Direction for Divisional Court Proceedings.
8. Once court staff gives you a court file number, make sure it is written on the upper right-hand corner of all your documents.
9. Make enough copies of your completed forms/documents. Usually you will require one copy for each party who must be served and one copy for your own records. There is a fee to have copies made at the court office.
10. Court fees must be paid to issue and file specific documents. Fees are payable in Canadian funds, and can be paid by cash, cheque or money order payable to the Minister of Finance. Where available, fees can also be paid by debit or credit card. If you cannot afford to pay court filing fees, you may apply for a fee waiver. More information about fee waiver is available online and at any court office.
11. An affidavit can be sworn or affirmed before either a:
    • Divisional Court staff member who is a commissioner for taking affidavits (there is a fee for this service)
    • lawyer or paralegal licensed by the Law Society of Ontario
    • notary public
    • person who has been appointed a commissioner for taking affidavits

These individuals are authorized to commission oaths. Find a commissioner for taking affidavits.

You should go to the commissioner with identification and the unsigned document. The commissioner will ask you to swear or affirm that the information in the affidavit is true and will ask you to sign the affidavit. The affidavit must be signed in front of the commissioner, since they will certify that it was sworn or affirmed in their presence.

You can also get your affidavit commissioned by video conference, instead of in person, if certain conditions are met.