Appellate Jurisdiction is Statutory
Appeal from the Order, Not the Reasons
Interlocutory and Final Orders
- The General Distinction
- The English Position
  - The Application Approach
  - The Order Approach
  - The Historical Context
  - Codification
- The Canadian Position
  - Hendrickson v. Kallio
  - Application of Hendrickson to Orders Affecting Non-Parties
- Finality in the Supreme Court of Canada
  - “Final Judgment”
  - “Final or Other Judgment”
  - Appeals by Third Parties
Appeals as of Right
- To a Superior Court
- To the Divisional Court
  - Final Order of a Judge of the Superior Court
  - Final Order of a Master
- To a Court of Appeal
Appeals with Leave
- Orders Granted on Consent
- Orders Awarding Costs
- Monetary Thresholds
- Interlocutory Orders
- From the Ontario Divisional Court
- Generally Leave Not Required to Cross-Appeal
- Preconditions to the Granting of Leave
  - Conflicting Decisions
  - Important Issues
  - Common Law Preconditions to the Granting of Leave
- To the Supreme Court of Canada
The Transfer Provisions
The Discretion Not to Hear Moot Appeals

Chapter 2: Appellate Powers in Civil Matters

Introduction
Overturning the Decision Appealed From
- Standards of Appellate Review
  - Questions of Law: Correctness
  - Direct Findings of Fact: “Palpable and Overriding Error”
  - Inferences from Established Facts
  - Questions of Mixed Fact and Law
  - Findings of Fact by an Appellate Court
  - Concurrent Findings of Fact
  - Findings of a Jury
  - Findings of Specialized Judges and Tribunals
- Discretionary Orders
- Assessment of Damages
  - Damages Award by a Jury
  - Damages Award by a Trial Judge
Hearing New Issues on Appeal
Admitting Fresh Evidence
- The Test
  - Not Previously Available
  - Apparent Credibility
  - Influence on the Result
- Damages Cases
- Agreed Statement of Facts
Stay Pending Appeal
- Automatic Stay
  - When Available
  - Lifting the Stay
- Stay by Order
- Stay Pending Proceedings in the Supreme Court of Canada
  - Sections 65 and 66
  - Section 65.1
  - The Test

PART 2 — APPEALS IN CRIMINAL MATTERS

Chapter 3: Appellate Jurisdiction in Criminal Matters

Introduction
Appeals in Indictable Matters
- To the Court of Appeal
  - By the Crown
    - Question of Law Alone
    - Conjecture
    - Misapprehension of Relevant Evidence
  - By the Accused against Conviction
    - Question of Law Alone
    - Mixed Law and Fact
    - Sufficient Ground of Appeal
  - Appeals Concerning Fitness to Stand Trial and Mental Disorder
  - Appeals Against Sentence
  - Charter Issues
- To the Supreme Court of Canada
  - By the Crown
    - Dissent on a Question of Law
    - Appeal on a Question of Law with Leave
  - By the Accused
    - Dissent on a Question of Law
    - Appeal on a Question of Law with Leave
    - Appeal from Overturning of Acquittal
    - Appeal of a Jointly Tried Accused
  - Appeals Against Sentence
  - Appeals Pursuant to Section 40
Appeals in Summary Conviction Matters
- To the Appeal Court: Appeal on the Record and Trial De Novo
  - By the Accused
  - By the Crown
- To the Appeal Court: Summary Appeal on Transcript or Agreed Statement of Facts
  - The Right of Appeal
- To the Court of Appeal
  - The Right of Appeal
- To the Supreme Court of Canada
Prerogative Writs
Miscellaneous Jurisdictional Issues
- Discretion to Continue Appeals following Death of Appellant
- Reopening a Dismissed Appeal
- Appeal Against a Costs Order

Chapter 4: Appellate Powers in Criminal Matters

Introduction
Overturning the Conviction
- Unreasonable or Cannot Be Supported by the Evidence
- Wrong Decision on a Question of Law
- Miscarriage of Justice
- New Trial or Acquittal?
Affirming the Conviction
- Conviction Proper in Part
- No Substantial Wrong or Miscarriage of Justice
- Procedural Irregularities
Overturning the Acquittal
Ancillary Powers
Bail Pending Appeal
- Prerequisites to Application for Bail
- Grounds to be Established by Appellant
  - Appeal Against Conviction or Appeal to Supreme Court of Canada
- Appeal Against Sentence Only to the Court of Appeal
- Conditions of Order for Release
- Applicability to Other Situations
- Review of Order for Release Pending Appeal
Admitting Fresh Evidence
Powers of the Supreme Court of Canada

PART 3 — APPELLATE PROCEDURES

Chapter 5: Procedure in Ontario’s Appellate Courts

Introduction
Procedure in Civil Appeals
- Appeals as of Right to the Ontario Superior Court of Justice
  - Commencement
  - The Appeal Record
  - Distinction Between Judges of the Superior Court and the Divisional Court
- Appeals as of Right to the Divisional Court and the Court of Appeal
  - Commencement
  - Transcripts
  - Cross-Appeals
  - Perfection: The Appeal Book and Compendium, Exhibit Book and Factum
  - Books of Authorities
  - Dismissal for Delay and Abandonment
  - Scheduling
- Appeals with Leave to the Divisional Court
  - Statutory Appeals
  - Appeals from an Interlocutory Order of a Judge of the Superior Court
- Appeals with Leave to the Court of Appeal
- Motions
- Security for Costs
  - Jurisdiction
  - Grounds for an Order for Security for Costs
    - “there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal”
    - “an order for security for costs could be made against the appellant under rule 56.01”
    - “for other good reason, security for costs should be ordered”
- Extension of Time
Procedure in Criminal Appeals
- Appeals to the Court of Appeal
  - Commencement
  - Extension of Time
  - Transcripts
  - The Appeal Book and Factum
  - Abandonment
- Appeals in Summary Conviction Matters
  - Commencement
  - Extension of Time
  - Transcripts
  - The Appeal Book and Factum
  - Abandonment

Chapter 6: Procedure in the Federal Courts of Canada

Introduction
Jurisdictional Issues
- Generally
- Tax Matters
- Immigration Matters
- Other Matters
- Power to Quash – Lack of Jurisdiction
- Powers on, and Location of, Appeals
Procedure in the Federal Court of Appeal
- Appeals as of Right to the Federal Court of Appeal
  - Commencement
    - Notice of Constitutional Question
    - Respondent Participation
  - Cross-Appeals
  - Consolidation of Appeals
  - The Appeal Record
  - The Appeal Book
  - Transcripts
  - The Memorandum of Fact and Law
  - Book of Authorities
  - Requisition for a Hearing
  - Dismissal for Delay and Status Reviews
  - Notice of Discontinuance – Abandonment
  - Judgment on Consent
- Appeals with Leave to the Federal Court of Appeal
Appeals to the Federal Court
- Appeals from Prothonotaries
- Appeals from References of Factual Questions
Obtaining Leave to Appeal to the Supreme Court of Canada
Global Review of the Federal Courts Rules

Chapter 7: Procedure in the Supreme Court of Canada

Introduction
Applications for Leave to Appeal
- General Principles
- The Application
  - Commencement
  - The Leave to Appeal Book
  - The Response
  - Submission to the Court
  - Re-hearings and Reconsiderations
- Oral Applications for Leave
Motions in the Supreme Court
- Motions to a Judge or the Registrar
- Motions to the Court
Appeals to the Supreme Court
- Commencement
- The Appellant’s Record and the Respondent’s Record
- The Factums
- Books of Authorities
- Scheduling
- Re-hearing of Appeal
Dismissal for Delay

Chapter 8: Intervention on Appeal

Introduction
Intervention in the Court of Appeal
Intervention in the Federal Courts
Intervention in the Supreme Court of Canada
Intervention in Administrative Appeals
Conclusion

Chapter 9: Preparing for and Presenting the Argument

Introduction
The Decision to Appeal
The Notice of Appeal
The Factum
- The Style of the Factum
- Drafting
  - The Facts
  - The Law
The Oral Argument
- Opening
- Statement of Points in Issue
- Review of the Evidence
- Review of the Law
- Conclusion
Delivering the Argument
- Style
- The Effect of Time Limits
  - General
  - Factum
  - Oral Argument
  - Is the Right to be Heard Compromised?
- Do’s and Don’ts
Conclusion

Table of contents

The Conduct of an Appeal, 3rd Edition