Leave to appeal is the permission of the court to bring an appeal.

At this stage, the party who wants to start the appeal is called the “moving party” because leave is requested through a motion. The other parties are called “responding parties” at this stage.

When leave to appeal is required

Leave to appeal is required in four types of circumstances:

  1. Leave to appeal may be required by the legislation (law) under which the original decision was made (for example, decisions made under the Assessment Act). 
  2. Under section 133(a) of the Courts of Justice Act, leave is required from an order that was made with the consent of the parties (and otherwise falls into the jurisdiction of the Divisional Court ).
  3. Under section 19(1)(b) of the Courts of Justice Act, leave is required if you want to appeal an interlocutory order of a judge of the Superior Court of Justice.
  4. Under section 133(b) of the Courts of Justice Act, leave is required if the only issue being appealed is the costs awarded by the court, if the costs were in the court’s discretion (and the amount is within the  jurisdiction of the Divisional Court ).

Where leave to appeal is specifically required by the legislation under which a decision was made or you are appealing an order that was made on consent, you must bring a motion for leave in accordance with Rule 61.03 of the Rules of Civil Procedure.

Where leave to appeal is required under section 19(1)(b) of the Courts of Justice Act (to appeal an interlocutory order) or under section 19(1)(a) combined with section 133 of that Act, you must bring a motion for leave in accordance with Rule 62.02 of the Rules.

Under both Rule 61.03 and Rule 62.02, the following timelines apply if you are seeking leave to appeal:

  • Unless the legislation provides otherwise, you must serve your Notice of Motion for Leave to Appeal (Form 37A) on all other parties affected by the decision under appeal (now referred to as “respondents”) within 15 days after the date that the order or decision being appealed was made.
  • After you serve the Notice of Motion for Leave to Appeal, you must file it, along with proof of service, within the next 5 days. There is a fee for filing the Notice of Motion for Leave to Appeal, payable at the time it is filed.
  • After you file the Notice of Motion for Leave to Appeal and your proof of service, you then have 30 days to serve and file a Motion Record, Factum, and other material, described in Rule 61.03 or Rule 62.02 (referencing Rule 61.03.1), as applicable.

See “Tips on completing forms in Divisional Court ” for special rules related to counting days for timelines with weekends, holidays and time less than seven days.

All motions for leave under Rule 62.02 must be filed with the Divisional Court Office in Toronto.

You may file your material by email, mail or courier or in-person at:

Divisional Court Office
Osgoode Hall
130 Queen Street West
Toronto, Ontario
M5H 2N5
 scj-csj.divcourtmail@ontario.ca

If you file in person, by mail or by courier, you must include payment of the filing fee . If you file by email, you will receive instructions on arranging for payment.

You should also consult the Superior Court of Justice’s Consolidated Practice for Divisional Court Proceedings and the Court’s COVID-19 Notice to the Profession for Divisional Court. These two documents should be read together, they include information on motions for leave to appeal to the Divisional Court, including details about filing materials with the court.

If leave to appeal is granted

If you are granted leave to appeal, you then have 7 days to  serve and file (with proof of service) your Notice of Appeal to the Divisional Court (Form 61A.1) and Appellant’s Certificate Respecting Evidence (Form 61C). There will be a fee payable when you file your Notice of Appeal. Your appeal will then continue in the same manner as an appeal where leave is not required.

Leave to appeal in certain family law cases (CYFSA)

The normal timeline does not apply to an appeal of an interlocutory (temporary) order made under the Child, Youth and Family Services Act, 2017. Under Rule 38(3) of the Family Law Rules, the motion for leave to appeal and the appeal are combined and heard together. This means you must serve the Notice of Motion for Leave to Appeal (Form 37A) within 30 days after the date of the order being appealed, at the same time as you serve the Notice of Appeal to the Divisional Court (Form 61A.1).