The Conduct of an Appeal Blog

Recent amendments to the Ontario rules of appellate practice

Aug 11, 2017 4 MIN READ
Mark A. Gelowitz

Partner, Disputes, Toronto

Amendments to the Ontario Rules of Civil Procedure came into effect on July 1, 2017. In addition to a number of technical amendments and amendments addressing first instance proceedings, several of the amendments will impact appellate practice in Ontario. What follows is a brief summary of significant amendments applicable to appeal proceedings and motions for leave to appeal. For a complete list of the amendments that took effect on July 1, 2017, see O. Reg. 82/17.

Leave to appeal to the Divisional Court from an Interlocutory Order

Pursuant to amendments to Rule 62.02, leave to appeal to the Divisional Court under clause 19(1)(b) of the Courts of Justice Act must now be obtained from a panel of that court, as opposed to a single judge. Consequential amendments have been made to Rule 62.02 reflecting that a panel of judges will now hear leave motions. These amendments also simplify the previous rule, which drew a distinction between motions filed in Toronto compared to motions elsewhere in Ontario.

Additionally, Rule 62.02(7) has been revoked, removing the requirement for brief reasons to be given where leave to appeal has been granted.

Leave to appeal in class actions

The amendments adjust the procedure for obtaining leave to appeal in class actions. Leave to appeal to the Divisional Court is required under subsections 30(2), (9), (10), or (11) of the Class Proceedings Act, 1992. This has not changed. What has changed is the applicable procedural route.

Previously, motions for leave to appeal under these subsections followed the procedures outlined in Rule 62.02 (which, as set out above, now provides for the leave motion to be brought to a panel of the Divisional Court). As of July 1, 2017, applicable procedure is that outlined in Subrules 61.03.1(2) to (19) – i.e., the procedure applicable to seeking leave to appeal to the Court of Appeal. These Subrules must be read with necessary modifications, including that references to the Court of Appeal must be read as being references to the Divisional Court (see Subrule 12.06(4), as am.).

Motions for leave to appeal under the abovementioned subsections of the Class Proceedings Act are to be heard in writing without the attendance of the parties and lawyers (Subrule 12.06(1.1)).

If leave to appeal is granted, the notice of appeal and the appellant’s certificate respecting evidence must be delivered within seven days of granting leave to appeal. Rule 61 thereafter applies to the class action appeal (Subrule 12.05(5)).

Motion for leave to appeal

The amendments modify the filing requirements for motions for leave to appeal to an appellate court under Rule 61.03.1. Importantly for practitioners, Subrules 61.03.1(6) and (10) now require the moving party and the responding party to file electronic versions of their respective factums.

The timing of the motion has also been changed. The Registrar is no longer required to submit the motion for leave to appeal to the court 36 days after service of the moving party’s motion record, factum and transcripts, if any, or on the filing of the moving party’s reply factum, if any, whichever is earlier. Rather, the Registrar is now simply required to fix a date for the hearing. That date still must not be before the earlier of the filing of the moving party’s reply factum, if any, or the expiry of the time for filing the moving party’s reply factum (see Subrules 61.03.1(2) and (14), as am.).

Certificates of estimated time

The amendments introduce a requirement to file a certificate stating how much time (expressed in hours or fractions of an hour) that the party’s lawyers estimate will be required for oral argument, not including reply, for motions for leave to appeal to the Divisional Court (clause 61.03(2)(b) and Subrule 61.03(3)) and for motions in the Divisional Court (Subrule 61.16(4.1)). This requirement does not apply to motions to be heard in writing (Subrule 61.16(4.1)). These amendments track the requirement to file equivalent certificates in factums on appeal (see Subrules 61.11(1) and (3)).

Consent motions in the Court of Appeal

The amendments introduce Subrule 37.12.1(2.1), which now expressly require an evidentiary foundation for consent motions in the Court of Appeal. Under this rule, “[i]n the case of a motion on consent in the Court of Appeal, an affidavit or other document setting out the reasons why it is appropriate the make the order sought on the motion shall also be filed with the notice of motion.”

Motion covers, including for fresh evidence motions

The amendments introduce Subrule 4.07(1.1), which clarifies the colour requirements for the front covers of motion records. As per the general practice, responding motion records continue to have green front covers, with most other motion records continuing to be white (with light blue backsheets). Importantly for appellate practice, Subrule 4.07(1.1)(b) now provides that fresh evidence motion records under s. 134(4)(b) of the Courts of Justice Act must have orange front covers.