This page covers the myriad ways in which appeals may be conducted in Ontario. It takes specific aim at peculiarities in the appeals process that could undermine a party's right to appeal. This page also provides practice tips to counsel.

General information regarding the appeals process in Ontario is derived from three pieces of legislation that should be very familiar to any litigation counsel. These are:

1. the Courts of Justice Act;
2. the Rules of Civil Procedure; and
3. the Supreme Court Act.

Before delving into more complex questions of appellate procedure, these acts should be reviewed and thoroughly understood.

Other legislation, like the Construction Act or the Arbitration Act, provide for different timelines and rights of appeal. Be careful to know whether special legislation applies to the decision under appeal. Many statutes that create administrative tribunals will specify when and how an appeal may be taken.

Appeal timelines are deceptively straightforward. For most appeals from Ontario Superior Court decisions, the time to appeal is either thirty (30) days if the appeal is to an appellate court, or seven (7) days if the appeal is from an interlocutory decision (rules 61 and 62).

An appeal is always taken from the order made, not from the reasons for decision. An order must be signed and entered for an appeal to be heard by the appellate court. Counsel must therefore work to obtain an order from the court and have it signed and entered without delay. A failure in this regard can lead to increased costs for the appeal.

As a general rule, the time in which to begin an appeal begins when the order is pronounced. The pronunciation of an order can occur in court at the end of a hearing; a jury may pronounce an order at the end of trial; a judge may issue an endorsement. These acts (and more besides) create the order because the parties to a dispute will understand precisely what the court requires of them. Drafting, signing, and entering the formal order in the book is an act separate from the actual making of an order (see rules 59.01 and 59.04).

In Byers v. Pentex Print Master ([2003] 167 OAC 159), the Ontario Court of Appeal explained the logic behind this distinction. A jury had pronounced judgment in a civil proceeding, with costs reserved to the presiding judge. Two orders therefore issued: a jury's order on the merits of the dispute and a judge's order with respect to costs. The appellant sought to appeal by arguing that the date of the costs order's pronouncement in court was the date on which the time to appeal was calculated. The Court disagreed. It said that:

litigants are best served by a rule which accords with the traditional understanding that a decision on the merits is final for the purpose of appeal when it is rendered, notwithstanding the pendency of the determination of the costs attributable to the case. (para. 17) …

Given that no formal judgment has been signed or entered in this case in respect to either the merits judgment or the costs judgment, reference should be made to two early Ontario decisions, Hickey v. Stover (1885), 11 P.R. 88 (Ont. Div. Ct.) and Fawkes v. Swayzie (1899), 31 O.R. 256 (Div. Ct.). These cases stand for the proposition that the time for appealing runs from the date that a judgment is pronounced and not from the date that it is signed and entered. This proposition is based on the settled principle that the binding effect of a judgment or order commences on the date of its pronouncement. This principle has been given effect by rule 59.01 which provides that an order (which includes a judgment) is effective from the date on which it is made, unless it provides otherwise, and by rule 59.03(3)(b) which requires that every formal order shall contain the date on which it was made. The formal judgment must be signed and entered, however, before the appellant's appeal can be perfected. (para. 31) …

the court possesses the power to alter, modify or amend its judgment, or to rectify its own mistake, following the release of its decision and before it has been signed as the formal judgment of court and entered. In other words, the court may reconsider matters properly encompassed in its decision on the merits before it is entered. When the court does so, and alters or modifies its merits judgment, the time for service of the notice of appeal from that judgment commences when that judgment has been altered or modified and entered. (para. 41).

These passages provide a complete summary of the rules for calculating the time to appeal.

1. Your day isn't over when the Court rises. If a decision of any kind was made by a judicial officer during the sitting that affects your client, you must determine whether your client wishes to appeal.
2. When in doubt, advise your client once a decision has been made of her or his right to appeal.
3. Always determine whether the appeal is from an interlocutory decision or a final decision.