Appeals in Divisional Court

Definition of an appeal

In an appeal, the appellant (the person who brings the appeal) argues that the lower court or tribunal made an error sufficient to justify overturning or changing its decision. The party who responds to the appeal is called the respondent.

An appeal is different from a trial or tribunal hearing. It is not a rehearing of the case. There can be no witnesses and no new evidence (except in very limited circumstances). Not all errors will change the outcome of a case on appeal.

When you can appeal

In some types of cases, there is an “automatic right of appeal” to the Divisional Court. This means that you can directly start an appeal.

However, there is not always an automatic right of appeal to the Divisional Court. In some situations, you must first obtain “leave” to appeal, meaning permission from the court to start the appeal. For example, you need leave (permission) before you can appeal an interlocutory order of a judge of the Superior Court of Justice that does not dispose of the proceeding. You must confirm whether you need leave by consulting either the Courts of Justice Act or any other legislation that applies to your appeal.

Both when there is an automatic right of appeal and when you need leave to appeal, there may be deadlines to start the process. If you do not follow the deadlines, you could lose your chance to start an appeal.