When an appeal is heard

When an appeal is perfected, the registrar of the Divisional Court will place it on the list of cases to be heard and will mail a Notice of Listing for Hearing (Form 61G) to every person listed in the Certificate of Perfection. For an estimate of the amount of time before the appeal will be listed, contact the court office where the appeal is filed.

If you cannot attend on the date set for the hearing

If you do not attend your appeal hearing, the appeal may be decided in your absence without your input. Since the date for the hearing is set well in advance, adjournments (meaning a postponement to a new date) are rare. If you are unable to attend, contact the court office as soon as possible for assistance.

Preparing for an appeal hearing

To get ready for the hearing:

  • review all the documents and the arguments you intend to make in support of or in response to the appeal
  • follow any instructions you receive from the court about uploading your documents onto the CaseLines document-sharing platform for the hearing
  • make a list of the points you need to make
  • try to anticipate questions that the judge(s) might ask
  • on your hearing date, dress appropriately (business wear for non-lawyers)
  • if your hearing is in person, give yourself plenty of time to travel to the courthouse and find your courtroom
  • if your hearing is by video conference, read any instructions the court provides and try to familiarize yourself with how the video conference technology works on your computer or other device 

If you have prepared your case well, you will be much more relaxed in court and you will be able to present your case to your best advantage.

You may also observe the other appeal hearings in preparation for your appeal hearing. With rare exceptions, court proceedings are open to the public. You can contact the court office to determine when Divisional Court appeals are being heard. If you want to observe a proceeding taking place over video conference, you will need to obtain the link in advance.

What happens at a Divisional Court appeal hearing

At the hearing of the appeal, the judge(s) will hear from the parties. The appellant is first to speak, followed by the respondent(s). The appellant can then reply, but not to repeat anything already covered. The purpose of reply is only to address issues raised by the respondent(s) that the appellant did not address initially. The judge(s) will usually ask questions of all parties throughout the hearing.

Behaving in court

When you are in court:

  • address any judge in Divisional Court as “Your Honour”
  • stand when a judge enters or leaves the courtroom (unless the hearing is taking place on video conference)
  • stand whenever you are speaking to a judge or a judge is speaking to you (unless the hearing is taking place on video conference)
  • do not interrupt when another party is speaking to a judge unless you are called upon by a judge
  • do not attempt to have any out-of-court communication with a judge unless the judge specifically orders it

Speaking at an appeal hearing

The time each party has to speak is strictly limited. A party can request a reasonable amount of time in the factum, but the court may provide less time. The judge or panel hearing the appeal will have prior access to the factums, so consider that when you estimate your request for time.

Introducing new evidence

Generally, you cannot introduce new evidence and there are no witnesses allowed on an appeal. However, in limited situations, you may bring a motion to the judge(s) hearing your appeal to put forward additional evidence under Rule 61.16(2) and section 134(4)(b) of the Courts of Justice Act. Such motions involve specific procedures (see Rule 37). If you are unsure how to proceed, you should consult a lawyer.

Decision of appeal

The judge(s) hearing the appeal may decide the appeal immediately or “reserve” the decision (meaning, deliver it at a later time).

Potential outcomes of an appeal

An appeal may be allowed, dismissed or allowed in part and dismissed in part.

If an appeal is allowed, this means that the appellant was successful. The panel will set aside the decision under appeal and may order a new hearing or, in appropriate circumstances, substitute its own decision.

If an appeal is dismissed, this means that the appellant was not successful. The original decision stands and any stay is immediately lifted.

If an appeal is allowed in part and dismissed in part, this means that the panel accepted some of the original decision but not all of it. It is important to read the decision carefully to understand what parts of the original decision stand and which do not.

Appealing a decision of the Divisional Court

Decisions of the Divisional Court may be appealed to the Court of Appeal for Ontario with leave of that court, except if the original order was made under Part V or Part VIII of the Child, Youth and Family Services Act, 2017 (child protection, adoption and openness matters), in which case leave is not required. Refer to section 6 of the Courts of Justice Act and Rule 61.03.1 of the Rules for more information.

Timelines for setting down or completing the appeal hearing

Your appeal may be dismissed for delay by the Registrar if the appeal is not set down for hearing or completed within five (5) years of filing the Notice of Appeal to the Divisional Court (Form 61A.1).

If you receive a dismissal order from the Registrar that your appeal was dismissed and you believe that this order was made in error, you should contact the Divisional Court office where you filed your appeal immediately. For more information on dismissal for delay, refer to “Dismissed appeals in Divisional Court”.