Court Of Appeal Handbook

8/18/2019 Court Of Appeal Handbook

1/46

Court of AppealHandbook A guide to representing yourself

at the Court of Appeal of Ontario

A guide to representing yourself

at the Court of Appeal of Ontario


2/46

Court of Appeal

Handbook

A guide to

representing yourself

at the Court of Appeal

for Ontario.


3/46

Note

THIS HANDBOOK WAS PREPARED as a pro bono

project by the Clerks for the Court of Appeal forOntario, 2004 to assist and to provide useful

suggestions to litigants involved in civil and criminal

appeals before the Court of Appeal. Updates to this

handbook were completed by Natasha Kanerva and

Kim Potter, Law Clerks for the Court of Appeal for

Ontario, 2012. While every effort was made to

ensure completeness and accuracy, the reader

should be aware that the applicable law, statutes

and rules may change from time to time. Please

refer to the references contained in this handbookand confirm that any statements made are complete

and remain current. Links to web site resources are

provided throughout this manual. If you encounter a

broken link, use your browser to conduct a key word

search for the missing resource. If possible, please

report the broken link to us at [email protected].

This is not an official document of the Court of

Appeal and therefore does not bind the Court in the

event of any conflict with a law, statute, rule orpractice of the Court.


4/46

Contents

1. Introduction ....................................................................................................... 4

2. Should I appeal to the Court of Appeal or to a different court? ......................... 4

Leave to Appeal ........................................................................................................................................................... 5Criminal Appeals: Federal Offences or Provincial Offences ........................................................................................ 5

Federal Offences .......................................................................................................................................................... 6

Civil Appeals: When You are Suing or Being Sued by Another Person ........................................................................ 8

3. How do I build my argument? ............................................................................ 9

Building Your Written and Oral Argument ................................................................................................................ 10

4. How do I do legal research? ..............................................................................14

Introduction ............................................................................................................................................................... 14

How To Do Legal Research......................................................................................................................................... 15

5. What are the risks of appealing a case? What are costs? .................................16

How Costs Work at the Court of Appeal .................................................................................................................... 17

6. How do I present my case in court? ..................................................................20

The Appellant’s Argument ......................................................................................................................................... 22

The Respondent’s Argument ..................................................................................................................................... 22

APPENDIX A ...........................................................................................................24

Glossary ...................................................................................................................................................................... 24

APPENDIX B – Getting Legal Help with an Appeal ..................................................25

The Appeals Assistance Project, legal clinics, and the lawyer referral service .......................................................... 25

Specialty Legal Clinics ................................................................................................................................................ 26

Appendix C .............................................................................................................30

Filing documents – what, how and when .................................................................................................................. 30

Appendix D ............................................................................................................34

Writing your factum for civil appeals......................................................................................................................... 34

Appendix E .............................................................................................................43

A guide to inmate appeals ......................................................................................................................................... 43


5/46

Court of Appeal Handbook Pro Bono Law Ontario (Last revised July 10, 2012) 4

1 Introduction

How to use this handbook

THIS HANDBOOK will help you answer these questions:

1) Should I appeal to the Court of Appeal or to a different court?

2) How do I build my legal argument?

3) How do I do legal research?

4) What are the risks of appealing the decision against me? What are the costs?

5) How do I present my case in court?

Representing yourself is very difficult. You should ask a lawyer to review your documents, help you develop your

argument, and help with legal research. If you cannot afford a lawyer to do some work, you can look for a legal clinic

that will help you for free. Legal aid clinics are listed in Appendix B. You can also read the assistance provided on the

Court of Appeal website at: http://www.ontariocourts.on.ca/coa/en/shp/civil.htm

This Guide refers to three kinds of laws: statutes, rules, and case law. Statutes are laws passed by the government. You

can find them in law libraries or online. Ontario statutes are available at: http://www.e-laws.gov.on.ca/

Federal statutes, including the Criminal Code, are available at: http://laws.justice.gc.ca/en

Rules explain the procedure you must follow in an appeal. The Rules of Civil Procedure apply to civil cases. You can find

them in a law library or at: http://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html

The Court of Appeal for Ontario Criminal Appeal Rules apply to criminal appeals. These Rules can be accessed at:

http://www.canlii.org/en/ca/laws/regu/si-93-169/latest/si-93-169.html

You must also be aware of Practice Directions, which are different in each court. You can find the Court of Appeal

Practice Directions on its website at: http://www.ontariocourts.on.ca/coa/en/notices/

Case law contains a judge’s reasons for deciding a dispute in a certain way. Case law is important because in order to

ensure consistency, a judge will decide the case before him or her in the same way that a similar previous case was

decided. Case law is discussed in Chapter 3.

2 Should I appeal to the Court of Appeal or to a

different court?

THERE ARE THREE COURTS in Ontario: the Ontario Court of Justice, the Superior Court of Justice, and the Court of

Appeal for Ontario.

The Ontario Court of Justice has judges and justices of the peace. Justices of the peace hear provincial offence cases.

Judges hear all other criminal cases, child protection cases, and appeals from decisions of justices of the peace.

http://www.ontariocourts.on.ca/coa/en/shp/civil.htmhttp://www.ontariocourts.on.ca/coa/en/shp/civil.htmhttp://www.ontariocourts.on.ca/coa/en/shp/civil.htmhttp://www.e-laws.gov.on.ca/http://www.e-laws.gov.on.ca/http://www.e-laws.gov.on.ca/http://laws.justice.gc.ca/enhttp://laws.justice.gc.ca/enhttp://laws.justice.gc.ca/enhttp://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://www.canlii.org/en/ca/laws/regu/si-93-169/latest/si-93-169.htmlhttp://www.canlii.org/en/ca/laws/regu/si-93-169/latest/si-93-169.htmlhttp://www.ontariocourts.on.ca/coa/en/notices/http://www.ontariocourts.on.ca/coa/en/notices/http://www.ontariocourts.on.ca/coa/en/notices/http://www.ontariocourts.on.ca/coa/en/notices/http://www.canlii.org/en/ca/laws/regu/si-93-169/latest/si-93-169.htmlhttp://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://laws.justice.gc.ca/enhttp://www.e-laws.gov.on.ca/http://www.ontariocourts.on.ca/coa/en/shp/civil.htm


6/46


The Superior Court of Justice is divided into four parts:

Small Claims Court deals with civil cases for less than $25,000.

Divisional Court hears appeals from administrative tribunals, such as the Ontario Human Rights Commission

Family Court hears matters of divorce, support, and custody.

The rest of the Court hears all other criminal and civil cases and appeals from the Ontario Court of Justice.

Some cases must be appealed to the

Superior Court before they can be

appealed to the Court of Appeal. If you

bring your appeal to the wrong court,

that court will send you to the correct

court and you will have to pay all of

the court fees again.

The rules that govern which court has

jurisdiction over your appeal are

different for federal offences,

provincial offences, and civil actions.

The rules are complex. You should ask a lawyer which court you should go to.

Leave to Appeal

Sometimes you are not allowed to appeal your decision without asking the court for permission. This is called getting

“leave to appeal.” Usually you do not need leave to appeal for the first time that the decision is appealed.

For an indictable offence (see “Federal Offences” see page 5), you will need leave to appeal:

On a question of fact or mixed law and fact (see “Identify the Mistakes” page 11).

Against your sentence.

If your appeal of a summary conviction has been dismissed by the Superior Court, and you wish to appeal to the Court of

Appeal, you can only appeal on a question of law (see “Identify the Mistakes” page 11) and you must get leave.

Usually, you argue that you should be granted leave at the same time that you argue the appeal.

If you are in jail and wish to be released on bail before your appeal, you must get leave before you are granted bail.

Criminal Appeals: Federal Offences or Provincial Offences

The court to which you should bring your appeal will depend on whether you are charged with a provincial offence or a

federal offence.


7/46


PROVINCIAL OFFENCES (See Flow Chart A)

The Provincial Offences Act explains which offences are provincial offences. Provincial offences include offences in:

The Highway Traffic Act

The Occupational Health and Safety Act

The Provincial Offences Act

A Municipality’s By-laws

If you are convicted of a provincial offence, you usually cannot appeal the conviction to the Court of Appeal unless you

have appealed it to a lower court first.

To appeal your case, first you must look at the document that sets out the charge or charges against you. This document

may be called an information, an offence notice, a summons, or a parking infraction notice. If the document charging

you is an offence notice, a summons, or a parking infraction notice, then you appeal to the Ontario Court of Justice. If it

is an information, you appeal to the Ontario Court of Justice if you were convicted by a justice of the peace, and to the

Superior Court of Justice if you were convicted by a judge. If you have already appealed to these courts, then you must

apply for leave to appeal to the Court of Appeal.

Federal Offences (See Flow Chart B)

If you have been convicted of a criminal offence, an offence involving drugs, or an offence relating to income taxes, you

have been convicted of a federal offence.


8/46


If you were convicted of a criminal offence that does not involve drugs, you were convicted under the Criminal Code. If

you were convicted of a drug offence, you were convicted under the Controlled Drugs and Substances Act . If you were

convicted of an offence related to your taxes, you were convicted under the Income Tax Act .

There are three types of federal offences:

Indictable offences

Summary conviction offences

Hybrid offences

Indictable offences are the most serious offences. Common examples are sexual offences against young people, criminal

negligence causing bodily harm or death, theft over $5000, robbery, and murder.

Summary conviction offences are less serious than indictable offences. Common examples are causing a public

disturbance and simple possession of drugs.

Hybrid offences can either be indictable or summary conviction offences. On the information, the Crown will decidehow serious the offence is and will choose to prosecute you for an indictable offence if it is serious or for a summary

conviction offence if it is less serious. Common examples are impaired driving, theft under $5000, common assault, and

sexual assault.

For some offences, the information will charge you with an indictable offence but you will be convicted of a summary

conviction offence. It does not matter what kind of conviction you received. If the information says that the Crown chose

to proceed by way of indictment, then you can appeal to the Court of Appeal. If not, you must appeal to the Superior

Court of Justice.

If you are convicted of both an indictable offence and a summary conviction offence, you can bring an appeal on both

convictions to the Court of Appeal.


9/46


Civil Appeals: When You are Suing or Being Sued by Another Person

DIFFERENCE BETWEEN FINAL AND INTERLOCUTORY ORDERS

You can only appeal final orders to the Court of Appeal. You cannot appeal interlocutory orders to the Court of Appeal

unless you appeal them to a lower court first. Final orders include judgments that hold you responsible for damages orthat dismiss the case. Interlocutory orders are made during the case and do not end the litigation.

Determining whether an order is final or interlocutory is complicated. During the litigation, any party can bring a motion

that the judge decides with an order. Sometimes, the order dismisses the action; in other cases, it may not. In general, if

an order ends the lawsuit, then it is a final order. If it does not end the suit, then it is an interlocutory order. If you do not

know whether the order is final or interlocutory, you will need to ask a lawyer.

APPEALING INTERLOCUTORY ORDERS (See Flow Chart C)

If the interlocutory order was made by a Master, you have a right to appeal that order to a judge of the Superior Court. I

you are appealing an interlocutory order made by a judge of the Superior Court, then you should bring your appeal tothe Divisional Court. You may only appeal an interlocutory order to the Court of Appeal after you have already appealed

to the Divisional Court.

APPEALING FINAL ORDERS (See Flow Chart D)

In general, if you are appealing a final order, you will appeal to the Divisional Court if:

A judge has made an order for less than $50,000

You are appealing an order of a Master (who is not a judge)

You are appealing an order made in Small Claims Court that involves more than $2,500 or

personal property worth more than $2,500

If the Divisional Court dismisses your appeal, you can appeal to the Court of Appeal. However, you will have to


10/46


obtain leave to appeal to the Court of Appeal (see “Leave to Appeal” page 5).

If the final order you are appealing does not fall into one of these three categories, then your appeal should go to the

Court of Appeal. There are exceptions to this general rule that cannot be covered here.

If you are not sure, you should consult a lawyer.

3. How do I build my argument?

WHICHEVER SIDE YOU ARE ON, the more preparation you do, the better your case will be.

If you are the appellant, you need to know the grounds for your appeal to put them in your Notice of Appeal (see

Appendix C).

This section provides a step-by-step approach to building your argument. You should use the legal research sources

discussed in Chapter 3 or seek help from one of the legal clinics listed in Appendix B.

You should read this section after you understand the costs of an appeal (see Chapter 6).

Some Tips Before You Start

The key ingredients of success on appeal are planning, preparation, and hard work. Judges will have little patience for

you if you have not prepared and if your argument appears emotional.


11/46


You must persuade the three judges on the panel to see the facts and the law as you do. The art of persuasion begins by

recognizing what kind of arguments will be the most persuasive and ends once you have thoroughly developed those

arguments. Here are some general tips:

BE PREPARED – If you come to the court well prepared, you will instantly gain credibility with the judges. You

must be familiar with the facts of the case and the law that applies to them. You must have thought out yourarguments.

BE CREDIBLE – Judges are human, and if they do not trust you, your job will be harder. Judges trust people who

are prepared, who do not exaggerate, and who acknowledge the weaknesses of their case. If you can do these

things in your factum and oral arguments, you will be more persuasive.

BE REASONABLE – As an unrepresented litigant, you are probably emotionally invested in your case. It is

important to remember that the Court of Appeal must decide the case reasonably and in accordance with the

law.

The more you look at your arguments from an outsider’s perspective, the more likely it is that you can make your

arguments reasonable and persuasive.

Building Your Written and Oral Argument

You have two opportunities to make your argument to the Court of Appeal: in written form in a factum and in oral

argument. An example of a factum is provided in Appendix D. Effective strategies for presenting your oral argument are

discussed in Chapter 5. In many ways, your factum is the more important of the two. You submit your factum before you

make your oral argument. The judges read it before they see you, and they may form an opinion before you open your

mouth. If you can state your arguments persuasively in written form, you will have gone a long way toward winning your

case.

If you are the appellant, your goal should be to complete the following sentence: “The lower court judge made an error,

for the following reasons.” If you are the respondent, your goal is to complete this sentence: “The lower court judge did

not make the error the appellant says, for the following reasons.”

STEP 1 – READ THE LOWER COURT DECISION AND RELATED MATERIALS

The first thing you should do is read the lower court decision you are appealing. Read it carefully and more than once.

You are looking for legal or factual mistakes that give the Court of Appeal a legal reason to overturn the decision. These

mistakes are not easy to find because judgments can be full of legalese. You may have to research to understand the

judgment.

Reading a Decision

The best way to try to find a mistake is to understand the legal issues in the case. Usually, the judge will list the issues at

the beginning or end of the judgment or as headings throughout the decision.

After you identify the issue, you should find out what the trial judge’s decision on that issue was. For example, in a

breach of contract case, the trial judge will either find that there was a breach of contract or that there was no breach.

In a criminal case, the trial judge will either find that the defendant is guilty or not guilty.


12/46


Your next thing is to find out how the trial judge came to that legal conclusion. Legal conclusions are always supported

by two things: (1) findings of fact and (2) decisions about the law.

Findings of Fact

Findings of fact may deal with something the parties agreed on or with something that the parties disagreed about.

Often a trial judge will identify f indings of fact by writing “I find that” or “I make the following findings.” However, if a judge states anything as fact, even without a clear introductory phrase, the Court of Appeal will treat it as a finding of

fact.

Findings of Law

The judge will apply a legal test to the facts to decide the case. The legal test is either in a statute (such as the Criminal

Code) or in other judges’ decisions. For example, in a contract case a judge must find that the parties (1) had a contract

and (2) that it was broken to award damages.

In a criminal case, the Criminal Code will state the factual elements that have to be met before a person can be found

guilty. For example, in a robbery case, a judge must find that the accused (1) stole from the victim and (2) used violenceor threats of violence. If the accused did not use violence, the accused will not be guilty of robbery but of theft.

Reading Transcripts

In criminal appeals, you must give the trial transcripts to the court. You should pay attention to the judge’s charge to the

jury because most errors of law occur in that charge. In some civil cases, transcripts can be useful if your appeal relates

to something that happened in the trial.

The first reason to read the transcripts thoroughly is to find unfair decisions about procedure. These can be important in

criminal cases. Second, the transcripts contain the trial judge’s instructions to the jury. These instructions may contain

errors. Because the jury does not give reasons, the only mistakes may be in the instructions to the jury.

The third reason to read the transcripts is that the evidence given at trial may be different from the judge’s findings of

fact. If that is so, the trial judge may have made an error and that could be a ground of appeal.

Finally, you should read the transcripts to become familiar with the evidence presented at trial. You need to be familiar

with the evidence before you write your factum and prepare your oral argument.

There is no correct way to approach transcripts except to read them from start to finish. Transcripts can be long, boring,

and repetitious. Even so, you must familiarize yourself with them. You can be surethe judges will.

Reading Everything Else

There may be other documents involved in your appeal. If you are charged with a criminal offence, there will be an

information or an indictment, which sets out the charges against you. There may be affidavit evidence or exhibits that

are important to your case. Commercial cases may involve contracts. Family cases may involve separation agreements.

All of the material that was evidence presented at trial may be important to your appeal, and you

should read it for the same reason you read the transcripts and the decision: it may reveal an error


13/46


made by the lower court judge. Also, it is crucial that you are as prepared as possible.

STEP 2 – IDENTIFY THE MISTAKES YOU WILL ARGUE

The appellant must show how the judge made an error that justifies overturning the decision. The error must have

affected the decision. Sometimes a judge will make an error that does not affect the final decision. The Court of Appeal

will not overturn the decision because the error did not affect the bottom line. You have to show that if the trial judge

did not err, the decision would have been different. The appellant must show where the trial judge’s mistake is. In your

factum, you should state the paragraph of the judgment or the page of the transcripts where the mistake was made. In

oral argument, you should be prepared to tell the judges where to look to find the mistakes.

The respondent must show why the trial judge did not make the error the appellant claims or why the error does not

justify overturning the decision.

The different kinds of mistakes are:

Mistakes of fact Mistakes of law

Mistakes of fact and law

Mistakes of Fact

The Court of Appeal may find that a trial judge made an error about the facts of the case that justifies overturning the

decision. However, this is the hardest kind of argument to make. The Court of Appeal will only overturn decisions

because of mistakes of facts if the mistake is obvious and if it is important to one of the legal conclusions reached by the

judge. This was stated in a Supreme Court of Canada case called Housen v. Nikolaisen, 2002 SCC 33. Courts of appeal

cannot overturn decisions because of factual errors unless those errors are “palpable and overriding.” If a mistake is not

important enough to the issues, the Court of Appeal will not overturn the decision. Therefore, proving that a witness lied

will not be enough to win your appeal.

Sometimes claiming that the trial judge made a mistake of fact will be the only argument that you can make. This is

especially true in criminal cases, where the legal test is usually clearly set out in the Criminal Code. If so, the best way to

persuade the judges that a mistake of fact justifies overturning a decision is to identify the mistake clearly, state why it is

obvious, and state why it is important to the legal issues of the case.

Mistakes of Law

It is easier to win an appeal if the judge made a mistake of law because an error of law does not have to be obvious or

important to justify overturning the decision. The Court of Appeal may intervene even if the mistake is small. However,you will have to show why the trial judge would have reached a different conclusion if he or she did not make that

mistake.

The most common types of mistakes of law are:

Mistakes applying a statute

Mistakes applying case law


14/46


Mistakes Applying a Statute

A trial judge may make a mistake interpreting a statute. For example, if the case relates to robbery under the Criminal

Code, the trial judge may forget that violence is necessary to prove that offence.

You should look at the language of the statute itself. Usually, a court is required to interpret a statute according to its

plain and obvious meaning. You should also look at other cases that have interpreted the same statute. For help findingthese cases, see the section on legal research in Chapter 3.

Mistakes Applying Case Law

Sometimes the legal test comes from cases. A lower court judge may have interpreted those cases incorrectly. The best

way to try to find out the test that should have been applied is to look for the leading cases in the relevant textbooks

and then to read them.

The best cases are those that are recent, those that are decided by appeal courts (especially by the Court of Appeal for

Ontario) or the Supreme Court of Canada, and those that have similar facts to your case. If you can show that the Court

of Appeal made the decision that you want it to make in a similar case, you have a very persuasive argument.

Mistakes of Fact and Law

It is possible for a lower court judge to make a mistake applying the proper legal test to the facts.

Such mistakes are very subtle and hard to argue. Make sure that you make this argument as clearly and simply as you

can.

STEP 3 – GATHER YOUR FACTS

Some of the facts in your case will support the argument you want to make, some will not. The facts are important to

your factum, where you will set them out concisely. They are also important to the legal argument you make both in

your factum and orally.

Parties do not only win cases based on the details of their cases or because of small points of law. They also win because

they can tell a good story about why they should win. You have to be able to tell the Court of Appeal why it would be

unfair for you to lose. To do so, you have to be able to marshal the facts into a convincing narrative or story.

Lawyers often make lists of “good facts” and “bad facts.” Then they organize the “good facts” into an argument that

supports their position, and they try to find reasonable explanations for the “bad facts.”

You must not hide the bad facts or lie. Instead, tell your story in a convincing and reasonable way to build a solid

foundation for a strong legal argument.

STEP 4 – DO LEGAL RESEARCH

Every argument you wish to make will be more persuasive if you can point to other legal authority that agrees with your

position. The best legal authority is usually case law.

The only cases that are binding on the Court of Appeal for Ontario are other Court of Appeal for Ontario cases and

Supreme Court of Canada cases. Binding means that the court must do the same thing in your case as in the other case.

Decisions by other courts of appeal in Canada or in lower Ontario courts are persuasive, but they are not binding. If you


15/46


are going to use non-binding legal authority, you must be prepared to argue why the Court of Appeal should follow the

reasoning in that case.

If you discover a case that is binding and relevant but that does not support your decision, you must give that case to the

court.

STEP 5 – DECIDE WHICH ARGUMENTS YOU WILL MAKE

Don’t make too many arguments. Even if you find several mistakes, it is best to take more time to argue the most

important mistakes. This is especially true in oral argument, where you may want to limit yourself to two or three of the

most persuasive errors. If you try to argue ten or twelve points, your weaker arguments may drown out your stronger

ones.

STEP 6 – ARGUMENTS YOU CANNOT MAKE

Never insult the trial judge, the other party, or the Crown. Not only does this do nothing to advance your position, it will

ruin your credibility and make you appear unreasonable. Never argue that a trial judge made a mistake without saying

where the mistake was made in the judgment and why it was made. In other words, do not make unsupported

arguments.

4 How do I do legal research?

Introduction

An important part of preparing your appeal is researching the legal issues in your case. Once you have finished this

research, you will be able to effectively state your legal arguments. Also, after each legal point that you make in your

factum, you must write the case name, statute, or other authority that you use to support the point.

The best place to do research is in a law library. Contact your local public library to find out about any law databases that

may be available. In Toronto, you can access LawSource at the Toronto Reference Library (789 Yonge Street). LawSource

contains a large database of Canadian case law, legislation, and other sources.

Also, every law school has a law library. In Toronto, you can use the Bora Laskin Law Library at the University of Toronto.

Its website can be accessed at: http://library.law.utoronto.ca/

You can also use the library at Osgoode Hall Law School. Its website is at: http://www.osgoode.yorku.ca/library

Both websites have links to other resources. You can also research at the law libraries at Ottawa University, Queen’sUniversity, University of Western Ontario, and Windsor University. Another place to do legal research is The Great

Library, which is located in Osgoode Hall, 130 Queen St. West, Toronto. It is in the same building as the Court of Appeal.

However, be aware that subscription computer databases are restricted to lawyers only. It has a website that lists other

useful resources at: http://rc.lsuc.on.ca/library/home.htm and http://www.llrx.com/features/ca.htm

Also Visit: http://www.cleo.on.ca/english/pub/onpub/online.htm

The following webpage has links to Canadian law libraries and textbooks, and discusses the Canadian legal system:

http://library.law.utoronto.ca/http://library.law.utoronto.ca/http://library.law.utoronto.ca/http://www.osgoode.yorku.ca/libraryhttp://www.osgoode.yorku.ca/libraryhttp://rc.lsuc.on.ca/library/home.htmhttp://rc.lsuc.on.ca/library/home.htmhttp://rc.lsuc.on.ca/library/home.htmhttp://www.llrx.com/features/ca.htmhttp://www.llrx.com/features/ca.htmhttp://www.cleo.on.ca/english/pub/onpub/online.htmhttp://www.cleo.on.ca/english/pub/onpub/online.htmhttp://www.cleo.on.ca/english/pub/onpub/online.htmhttp://www.llrx.com/features/ca.htmhttp://rc.lsuc.on.ca/library/home.htmhttp://www.osgoode.yorku.ca/libraryhttp://library.law.utoronto.ca/


16/46


http://rc.lsuc.on.ca/library/collections_libraries.htm

Additionally, this site is a good source of general legal information:

http://rc.lsuc.on.ca/library/collections_libraries.htm

How To Do Legal Research

1. DEFINE THE PROBLEM

The first and most important step is to properly identify the type of problem that you must address.

In criminal appeals, your problem lies in the general area of criminal law. In civil appeals, there is a broader range of

possible areas of law. The trial judge’s decision will help you to focus your research. If, for example, the judge ruled that

you were liable for negligence, you know that your appeal will address this issue.

2. SECONDARY SOURCES

Once you know what area of law is relevant, you should consult secondary sources such as textbooks or journal articles.

They are a great way to get basic information on the law. They may not answer your specific question, but they will help

you to learn the language and logic of the law. They can also help you to find leading cases and statutes relevant to your

appeal.

You can also use a legal encyclopaedia, which provides brief statements of law and a list of leading cases. One

encyclopaedia is the Canadian Encyclopaedic Digest (CED), which is available in law libraries. The CED is organized by

topic, in a hierarchy. For example, you might use the CED to research a question about assault by looking up the topic

“Criminal Law.” Under “Criminal Law”, you would find “Assault and Related Offences.” Under this subheading, you

would other topics. By going through this process, you can narrow your search to the proper area of the law.

This site provides a guide to secondary sources and links to textbooks: http://www.llrx.com/features/ca_sec.htm

Irwin Law publishes a series entitled “Essentials of Canadian Law.” These are short books that outline particular areas of

law, and can be an excellent starting point. You can find a list of these titles at their website or in law libraries:

http://www.irwinlaw.com/store/series

Although textbooks, journal articles, and legal encyclopaedias can be useful, they are not binding on courts. You must

find cases or statutes to confirm that the principles of law you found are correct and up-to-date.

3. STATUTESThere may be a statute that applies to your case. It is important to start with the statute before reading cases. There are

several online sources of statutes. The Department of Justice maintains a website that provides access to all federal

statutes, such as the Criminal Code and the Charter of Rights and Freedoms at:

http://laws.justice.gc.ca/en/ (click on “Statutes by Title”)

For Ontario laws, the government lists all statutes at: http://www.e-laws.gov.on.ca

http://rc.lsuc.on.ca/library/collections_libraries.htmhttp://rc.lsuc.on.ca/library/collections_libraries.htmhttp://rc.lsuc.on.ca/library/collections_libraries.htmhttp://rc.lsuc.on.ca/library/collections_libraries.htmhttp://www.llrx.com/features/ca_sec.htmhttp://www.llrx.com/features/ca_sec.htmhttp://www.llrx.com/features/ca_sec.htmhttp://www.irwinlaw.com/store/serieshttp://www.irwinlaw.com/store/serieshttp://laws.justice.gc.ca/en/http://laws.justice.gc.ca/en/http://www.e-laws.gov.on.ca/http://www.e-laws.gov.on.ca/http://www.e-laws.gov.on.ca/http://www.e-laws.gov.on.ca/http://laws.justice.gc.ca/en/http://www.irwinlaw.com/store/serieshttp://www.llrx.com/features/ca_sec.htmhttp://rc.lsuc.on.ca/library/collections_libraries.htmhttp://rc.lsuc.on.ca/library/collections_libraries.htm


17/46


18/46


When a civil trial or appeal is finished, a judge can order one side to pay the legal expenses of the other side. This

payment is called a “costs award.” Costs are not a fine or a punishment.

How Costs Work at the Court of Appeal

Costs are important in three situations:

YOU WANT TO START AN APPEAL

You should understand the financial risks of starting an appeal. If you win, you may not have to pay the costs order

made at trial. If you lose, you may have to pay the expenses of the other party for the trial and appeal.

THE OTHER SIDE STARTS AN APPEAL AGAINST YOU

You should understand the financial risks of responding to an appeal. If you win, you can ask the Court to order the

other side to pay costs. If you lose, you may have to pay the other side’s legal expenses for the appeal as well as your

own.

YOU ONLY WANT TO APPEAL THE TRIAL JUDGE’S COSTS ORDER

You can appeal a costs order without appealing the case. Make sure that you are in the right court by reading sections 6

and 19 of the Courts of Justice Act. This statute is in libraries and is on:

http://www.canlii.com/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html

Legal Rules About Costs

The Rules of Civil Procedure explain when costs are ordered. Rule 58 applies to trials; Rule 61 applies to appeals. You can

find the rules in a law library or at: http://www.canlii.com/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-

194.html

There is a special set of rules for family law cases called the Family Law Rules. Rule 24 applies to trials; Rule 38, to

appeals. The rules are explained at: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm

The Family Law Rules deal with the same issues as the Rules of Civil Procedure.

How Judges Decide the Amount of Costs

Judges have discretion to order one party to pay costs; they can choose who should pay and how much that person

should pay. Judges examine several factors in making this decision. You should understand the factors before asking for

costs or challenging the amount the other side wants. The factors are in Rule 57.01 of the Rules of Civil Procedure. They

are:

1. The amount claimed and the amount awarded in the appeal.

2. The relative success of each party.

3. How complicated the appeal was.

http://www.canlii.com/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.htmlhttp://www.canlii.com/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.htmlhttp://www.canlii.com/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://www.canlii.com/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://www.canlii.com/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://www.canlii.com/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htmhttp://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htmhttp://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htmhttp://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htmhttp://www.canlii.com/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://www.canlii.com/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.htmlhttp://www.canlii.com/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html


19/46


4. If the case raises important issues without clear answers.

5. If a party increased or decreased the time to hear the appeal.

6. If a step in the appeal was taken out of spite or by mistake.

7. If a party refused to admit something that should have been.

8. If a party started two cases when one would have worked or increased costs by refusing to help parties on the

same side.

9. The lawyer’s experience, rates, hours spent on the case.

10. The party’s reasonable expectations about costs.

11. Any other matter relevant to the question of costs.

For an example of the way that judges deal with costs, read Boucher v. Public Accountant’s Council (2004) for

Ontario or Moon v. Sher (2004). They are available here:

http://www.canlii.org/en/on/onca/doc/2004/2004canlii14579/2004canlii14579.html

http://www.canlii.org/en/on/onca/doc/2004/2004canlii39005/2004canlii39005.html

Costs If Parties Tried to Settle the Case

Rule 49.10 has special rules for costs if there is an offer to settle a case. The rule penalizes people for refusing

reasonable offers to settle by ordering them to pay costs even if they win. If a lot of money is at stake, you should get

advice before making or refusing an offer to settle.

Costs If Parties Should Have Used Simplified Procedure

Rule 76 creates a simplified procedure for cases that concern a small amount of money. Rule 76 does not apply to

appeals, case managed matters, class actions, the Construction Lien Act, or family lawsuits. If a case should have used

the simplified procedure but did not, Rule 76.13 assigns costs to the party that started the case, regardless of who wins.

The Expenses that Costs Cover If One Party Has a Lawyer

You should understand the financial risks of an appeal. Even if you win, you will have to pay for some of the expenses

out of your own pocket. It is very rare for a costs award to cover all of the legal costs of an appeal.

For someone who has a lawyer, there are three different scales of costs:

The partial indemnity scale

The substantial indemnity scale

The full indemnity scale

PARTIAL INDEMNITY COSTS

Courts usually order partial indemnity costs. Partial indemnity costs cover about half of the total cost of a lawyer. This

includes some of the lawyer’s fees, travel expenses, long-distance calls, and secretarial work. If you get a costs order,

you will pay half of your trial and appeal expenses.

http://www.canlii.org/en/on/onca/doc/2004/2004canlii14579/2004canlii14579.htmlhttp://www.canlii.org/en/on/onca/doc/2004/2004canlii14579/2004canlii14579.htmlhttp://www.canlii.org/en/on/onca/doc/2004/2004canlii39005/2004canlii39005.htmlhttp://www.canlii.org/en/on/onca/doc/2004/2004canlii39005/2004canlii39005.htmlhttp://www.canlii.org/en/on/onca/doc/2004/2004canlii39005/2004canlii39005.htmlhttp://www.canlii.org/en/on/onca/doc/2004/2004canlii14579/2004canlii14579.html


20/46


SUBSTANTIAL INDEMNITY COSTS

Substantial indemnity costs cover almost all of a party’s legal expenses. They cover more expenses than partial

indemnity costs. However, they are only awarded when the judge thinks that one party conducted the litigation in an

abusive manner. This does not mean that one party was rude. It means that the party did not follow or abused the Rules

of Civil Procedure.

You should be careful to obey every court order and all of the Registrar’s instructions to avoid having substantial

indemnity costs ordered against you. Do not bring motions just to get more time or to harass the other side and do not

refuse reasonable requests made by the other side.

FULL INDEMNITY COSTS

Full indemnity costs cover all of the legal expenses of one party. Judges always have the power to award full indemnity

costs, but they are only awarded in specific, exceptional situations, including lawsuits about wills.

If you are appealing a case based on a contract, you should check the contract to see if you have agreed to pay the other

side’s costs on a substantial or full indemnity basis.

Who Pays Costs

The side that loses an appeal usually has to pay the costs of the side that wins. Before you appeal a case, you must

decide whether to risk having to pay the other party’s legal expenses, which could be in the tens of thousands of dollars.

You may wish to talk to a lawyer about your chances of success before bringing an appeal.

A judge does not have to order the loser to pay the winner’s costs. Sometimes, no costs will be ordered. This is rare and

usually happens when a new legal issue is argued for the first time. Sometimes the winner may have to pay the loser’s

costs. For example, costs can be awarded against a winner who did not comply with the Rules of Civil Procedure.

A Self-Represented Person’s Costs

Self-represented people do not receive the same kind of costs that people with lawyers receive. Costs cover the legal

expenses that result from litigation. A person without a lawyer does not have to pay a lawyer.

A self-represented person must provide receipts that prove that he or she lost money as a result of doing work that a

lawyer would normally do. This could include travel expenses, photocopying, transcripts, time off work, or child-care

expenses. A person without a lawyer will not receive costs for things that all litigants must do, like coming to court.

If you are representing yourself and you request costs from the other side, you should read Fong v. Chan (1999), which

explains everything summarized above. You will be able to find this case in any law library

or at: http://www.ontariocourts.on.ca/decisions/1999/December/fong.htm

Asking for Costs at the Court of Appeal

If you want the Court of Appeal to order the other side to pay costs, you must ask for costs in your Notice of Appeal and

at the end of your factum.

http://www.ontariocourts.on.ca/decisions/1999/December/fong.htmhttp://www.ontariocourts.on.ca/decisions/1999/December/fong.htmhttp://www.ontariocourts.on.ca/decisions/1999/December/fong.htmhttp://www.ontariocourts.on.ca/decisions/1999/December/fong.htm


21/46


If you lost at trial and want the other side to pay the costs that were awarded at trial, you need to ask for costs “below.”

This is different from appealing a costs order. If you appeal a trial judgment andwin, you will probably get an order

saying that the other side has to pay costs below. You get those costs because you should have won your case the first

time.

Appealing Costs Orders

Appealing a costs order means that you want the Court to change the amount of costs you were ordered to pay at a

trial. You can appeal a costs order alone or at the same time that you appeal the trial decision. Even if you lose your

appeal, the court may reduce the costs order.

You must always ask for leave to appeal a costs order. If you are appealing the both the trial judgment and the costs

order, you must ask for leave in your Notice of Appeal. If you forgot to ask for leave in your Notice of Appeal, you can file

a Supplementary Notice of Appeal asking for leave to appeal costs. However, you can only file the Supplementary Notice

of Appeal if you have not yet perfected your appeal (see Appendix C).

If your appeal is perfected, you must request leave in your factum and then explain why the costs order should bechanged. See Byers v. Pentex (2003) at: http://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htm

If you decide to appeal only the costs order and not the main judgment, then you must make a Motion for Leave to

Appeal. The rules governing motions for leave to appeal are in Rule 61.03.1. It is important to make sure that you are

appealing to the right court (see Chapter 1). Generally, you appeal a costs order to the same court to which you would

have appealed the trial judgment. If you are unsure, you should seek legal advice.

A motion for leave to appeal is made in writing; there are no oral arguments. You must file a Notice of Motion stating

that you intend to ask for leave to appeal. Next, you must file a factum requesting leave to appeal the costs order from

trial and explain why your appeal should be granted. In your Notice of Motion and your factum, you should also ask the

Court of Appeal to award to you your costs for the motion.

To win an appeal on costs, you must show that the trial judge based the decision on the wrong legal principle. This

standard is higher than the regular standard for appeal: you have to show that the trial judge made a material and

obvious mistake and was not considering the right factors. Costs appeals usually fail. If you lose the appeal, you will

probably have to pay the cost of the appeal and of the motion for leave to appeal. Talk to a lawyer before you decide to

take this risk to see whether you could win.

6 How do I present my case in court?

EACH COURT HAS ITS OWN rules about how oral argument works. You will receive a letter from the court confirming

the date and time for your appeal. The letter will state how long you have toargue your appeal. Come to the court early

and sit on a bench at the back. When it is your turn, move to the front of the room so the judges can see and hear you.

Three judges will hear your appeal. You must stand up when the judges enter and exit the room and every time you

speak. You should call the judges “Justice X”, “Justice”, or “Your Honour.” The senior judge sits in the middle; the junior

judge sits to the senior judge’s left (your right).

http://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htmhttp://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htmhttp://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htmhttp://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htm


22/46


The appellant goes first and the respondent goes second. The appellant will usually stand on the right side of the

courtroom and the respondent will stand on the left, facing the front. The Crown always stands on the right.

Use Your Time Wisely

You will have a time limit for your oral arguments. It is very important not to go over your limit. If you need more time,

ask the judges for it at the beginning of your argument. They may refuse. To stay within your time, you should focus on

the question:

Appellant: How did the trial judge err?

Respondent: Why was the trial judge correct?

Practice your argument to make sure you will stay within the limit. The judges will stop you to ask you questions so do

not plan to speak for the entire time. Do not be discouraged if the judge interrupts to ask questions. Oral argument

exists to help the judge understand your arguments. Listen to the question, take a moment to think of the answer, and

answer briefly.

The judges have read the materials for the case. They are familiar with the facts, the decision of the trial judge, and your

factum. The judges also know the law, so simply explain how the law applies to your case.

If you are run out of time, say that you will rely on the arguments in your factum for any point that you do not have time

to address.

The Facts on the Facts

The Court of Appeal usually accepts the facts as the trial judge found them. You should try to rely on the facts as the tria

judge found them. However, if you can show that the trial judge made an obvious mistake or failed to review the

evidence, then you will have shown a legal error.

Because the Court of Appeal is not a place to re-examine the facts, you should only bring up facts that you think the trial

judge misunderstood or failed to consider. You cannot rely on new evidence or facts without asking the court’s

permission in a motion to admit fresh evidence.

Keep in mind that if the trial judge found one version of the facts, it is extremely difficult to have the Court of Appeal

make a different decision about a particular version of the facts. See “Mistakes of Fact” page 14. Make sure that you

focus your argument on the law and not just on the facts.

What Not To Do

Do not use your time to talk about less important arguments; focus on the most important arguments.

Do not go over all the facts because the judges read the material. Highlight the facts that support your

argument.

Do not read your factum because the judges read it already.

Do not behave rudely and do not lose your temper. Lawyers refer to each other as “my friend” and to everyone

else as Mr. or Ms. X.


23/46


Remember, three really good ways to lose credibility are to be too argumentative, too adversarial, and too long.

The Appellant’s Argument

THE OPENINGStart with one sentence explaining the context of the appeal, such as “This is an appeal from a divorce judgment.”

Explain in one sentence the decisions of the lower courts. Then give the judges a map or summary of your arguments.

This makes it easier for the judges to focus on what is important.

A good road map is: “In my argument I will show the trial judge erred in two/ three/ four ways.” Then list the errors.

Finish your opening by stating what remedy or order you are asking for.

THE ISSUES

Start with your strongest argument. In each argument review the important facts and law. Then apply the law to the

facts, and state your conclusion.

Review the Facts

The judges have reviewed the materials and know the facts. You may want to quickly review the parts of the trial ju dge’s

decision that you are going to deal with and the facts that are important to the appeal.

Review the Law and Apply It to the Facts

This is the meat of your argument. You do not need to do a long review of the law. Rather, use your legal research to

show how you think the trial judge erred. You should also comment on any cases you found.

Make sure that the judges have a copy of the case and highlight which part of the case relates to your case. The case

should be in your Book of Authorities. If it is not, then you must give copies to the Registrar to hand up to the judges.

You must also give copies to the other lawyers.

THE CONCLUSION

Plan your last sentence so that it gives a strong final message. You can simply list again the ways in which you think the

trial judge erred and state the order that you want the court to make. Do not be discouraged if you do not get to the

conclusion. Oral argument exists to let the judges ask you questions about the problems they see with your argument.

The Respondent’s Argument

The purpose of the respondent’s argument is to respond to the appellant’s arguments. You must show why the trial

judge was correct. You should respond to the appellant’s factum; do not make up answers on the spot. You should listen

to what the appellant says and put your emphasis on the same issues that the appellant emphasizes.

The structure of the respondent’s argument is the same as the appellant’s: you need an opening, a discussion of the

issues, and a conclusion.


24/46


You should always leave time for questions from the judges. You should never argue that the appellant is a bad person

or company.

The Appellant’s Reply

After the respondent has spoken, the appellant will have five to ten minutes to respond to what the respondent has

said. The reply is important to the appellant’s argument because it lets the appellant contradict any facts that the

respondent got wrong or to argue against a new argument raised by the respondent. You cannot raise any new points in

the reply.

Be careful. You want to leave the judges with a positive impression of your argument. Do not reply just for the sake of

replying. Make sure you have something important to say in response to the respondent’s argument.

Civility and Politeness

The way you behave is very important. You will get your point across more effectively if you are polite and respectful to

the judges and the other party, and you stay within your time. Try and answer the judges’ questions in a straightforward

and direct way. This is not a court where the parties are confrontational or argumentative. If you would like further

tips on arguing your case you may want to read the following articles, available in most law libraries:

• Binnie, Ian, “In praise of oral advocacy” (Spring 2003) 21 Advocates’ Soc. J. No. 4, 3 –18.

• Catzman, Marvin, “The wrong stuff: How to lose appeals in the Court of Appeal” Summer

2000) 19 Advocates’ Soc. J. No. 1, 1–5.

• Catzman, Marvin, “The wrong stuff: Tip 8” (Summer 2002) 21 Advocates’ Soc. J. No. 1, 1–2.

• Catzman, Marvin, “Losing tip no. 14: Openers and closers” (Autumn 2004) 23 Advocates’ Soc.

J. No. 2, 21 –22.

• Finlayson, George D., “Appellate Advocacy in an Abbreviated Setting” (Summer 1999) 18

Advocates’ Soc. J. No. 2, 22–25.

• Laskin, John I., “What persuades (or, What is going on inside the judge’s mind)” (Summer

2004) 23 Advocates’ Soc. J. No. 1, 4–9.

• Robins, Sydney L., “Appellate advocacy” (October 1997) 16 Advocates’ Soc. J. No. 3, 11–15.

• Sopinka, John, “Appellate Advocacy” (March 1992) 11 Advocates’ Soc. J. No.1, 16–20.


25/46


APPENDIX A

Glossary

Appeal Book: The Appeal Book contains the information that the lower court judge had before him. It makes it easy forthe judges to look at the important information, such as the lower court judge’s reasons.

Appellant: The appellant is the party bringing the appeal.

Case Law: Courts look at similar cases to help then decide new cases.

Compendium: The Compendium contains the information that is critical to your argument, such as portions of the

transcript or important contracts.

Costs: When a civil case is finished, a judge can order one side to pay the legal expenses of the other side. This payment

is called a “costs award.”

Factum: A factum is a written document that each party gives to the court that outlines the argument that party will

make. It has a set structure and must include a list of sections. See Appendix B.

Federal Offence: If you have been convicted of a criminal offence, an offence involving drugs, or an offence relating to

income taxes, you have been convicted of a federal offence.

Final Order: Final orders include judgments that hold you responsible for damages or that dismiss the case. In general, if

a decision or a motion brings an action to an end, then it is a final order.

(An) Information: An Information sets out criminal charges against you.

Interlocutory Order: Interlocutory orders are made during the case and do not end the litigation.

Judge: A judge is an officer of the court who presides over a case.

Judgment: The court’s final decision about the parties’ claims resolving the dispute about facts and law.

Justice of the Peace: A justice of the peace is a judge who has jurisdiction over minor criminal offences.

Leave to Appeal: Leave to appeal is ‘permission’ to appeal.

Master: A judicial official appointed to act as the court’s representative.

Misapprehend: A judge misapprehends the facts when he or she does not consider a particular fact or misunderstands

the evidence. If this misunderstanding affected the final decision, then that judge erred.

Motion: A motion asks for an order about a procedural issue, such as admitting fresh evidence, granting leave to

appeal, or granting bail.

Noting Up: Noting up a case requires checking all of the decisions made after that case to see if a court has overturned

it, criticized it, or accepted it.


26/46


Offer to Settle: An offer to settle is an offer that one party makes to the other party to try to resolve the dispute without

going to court. The offer happens after court proceedings start but before the trial or appeal ends.

Offence Notice: An Offence Notice sets out the charges against you.

Order: An order sets out the instructions that parties must follow.

Party: A party is a person, corporation, or association that is suing someone or being sued in a civil case. In a criminal

case, the parties are the person who is accused of a crime and the Crown.

Provincial Offence: A provincial offence is an offence under the Highway Traffic Act, the Occupational Health and

Safety Act, the Provincial Offences Act, or a Municipality’s By-laws.

Reply: After the respondent has spoken, the appellant has a short time to respond to what the respondent has said.

Respondent: The respondent is the party arguing against the appeal.

Reviewable Error: A legal error or an error of fact that affected the decision. In other words, if the judge had not madethe legal or factual error, the trial judge would not have made the decision that was made.

Secondary Sources: Secondary sources are textbooks or articles that explain the law or some other subject.

Statute: A statute is a law created by the government.

Summons: A summons sets out the charges against you.

APPENDIX B Getting Legal Help with an Appeal

The Appeals Assistance Project, legal clinics, and the lawyer referral service

Appeals Assistance Project

Pro Bono Law Ontario (PBLO) operates the Appeals Assistance Project (AAP). Self-represented litigants apply to PBLO

for assistance and, in appropriate case, PBLO tries to match them with pro bono lawyers. The services provided under

the AAP range from discrete tasks (such as an assessment of the merits of the appeal or assistance with drafting a

factum for a motion or an appeal) to full representation on an appeal or motion. The AAP does not guarantee any

particular type of assistance. The details of any assistance to be provided are to be reached in consultation with PBLO

and the volunteer lawyer. More information can be obtained at www.lawhelpontario.org/appeals, or by calling (416)597-770 ext. 231.

Regional Clinics

COMMUNITY LEGAL EDUCATION ONTARIO (CLEO)

Address: 119 Spadina Avenue, Suite 600, Toronto, ON M5V 2L1

http://www.lawhelpontario.org/appealshttp://www.lawhelpontario.org/appealshttp://www.lawhelpontario.org/appealshttp://www.lawhelpontario.org/appeals


27/46


Phone: 416-498-4424

Fax: 416-408-4424

Email: [email protected]

http://www.cleo.on.ca/

CLEO publishes brochures on the law and legal process. CLEO also has a number of brochures that will help you find

Legal Aid Clinics in your area:

http://www.cleo.on.ca/english/pub/onpub/subject/legal.htm

HAMILTON COMMUNITY LEGAL CLINICS

http://www.hamiltonjustice.ca/LAWYERLOCATE.CA

http://www.lawyerlocate.ca/lawlinks/community.asp

LAW SOCIETY REFERRAL SERVICE

Phone: 1-800-268-8326 or 416-947-3330 (within the GTA) (English)/1-800-268-8326 ou 416-947-3330 (dans la GRT)

(French)

On-line request form: http://lrs.lsuc.on.ca/lsrs/

This service provides a half-hour consultation with a lawyer

LEGAL AID ONTARIO

http://www.legalaid.on.ca/

Legal Aid provides financial assistance to get a lawyer if you qualify under their eligibility criteria, including the area of

law and your income.

VOLUNTEER LAWYERS SERVICE (VLS)

http://www.volunteerlawyers.org

VLS develops, implements, and coordinates strategies to promote pro bono legal services in Ontariot hrough non-profit

and charitable community based organizations. VLS provides pro bono legal assistance, information seminars, aspeaker’s bureau, and factual resource material.

Specialty Legal Clinics

These legal clinics serve only certain groups of people. If you fit into the service group for one of these clinics, then you

may contact them for help.

http://www.cleo.on.ca/http://www.cleo.on.ca/http://www.cleo.on.ca/english/pub/onpub/subject/legal.htmhttp://www.cleo.on.ca/english/pub/onpub/subject/legal.htmhttp://www.hamiltonjustice.ca/LAWYERLOCATE.CAhttp://www.hamiltonjustice.ca/LAWYERLOCATE.CAhttp://www.lawyerlocate.ca/lawlinks/community.asphttp://www.lawyerlocate.ca/lawlinks/community.asphttp://lrs.lsuc.on.ca/lsrs/http://lrs.lsuc.on.ca/lsrs/http://lrs.lsuc.on.ca/lsrs/http://www.legalaid.on.ca/http://www.legalaid.on.ca/http://www.volunteerlawyers.org/http://www.volunteerlawyers.org/http://www.volunteerlawyers.org/http://www.legalaid.on.ca/http://lrs.lsuc.on.ca/lsrs/http://www.lawyerlocate.ca/lawlinks/community.asphttp://www.hamiltonjustice.ca/LAWYERLOCATE.CAhttp://www.cleo.on.ca/english/pub/onpub/subject/legal.htmhttp://www.cleo.on.ca/


28/46


THE ADVOCACY CENTRE FOR THE ELDERLY (ACE)

Address: 2 Carlton St., Suite 701, Toronto, ON M5B 1J3

Phone: 416 598-2656

Fax: 416-598-7924

http://www.advocacycentreelderly.org/

ACE is a community based legal clinic for low-income senior citizens. ACE provides direct legal services tolow-income

seniors.

AFRICAN CANADIAN LEGAL CLINIC (ACLC)

Address: 18 King Street East, Suite 901, Toronto ON M5C 1C4

Phone: 416-214-4747 or 1-888-377-0033

Fax: 416-214-4748

www.aclc.net/

ACLC addresses systemic racism in Ontario through test case litigation and provides summary legal advice.

ARCH DISABILITY LAW CENTRE

Address: 425 Bloor St. E., Suite 110, Toronto, ON M4W 3R4

Phone: 416-482-8255 or 1-866-482-2724

TTY: 416-482-1254 or 1-866-482-2728

Fax: 416-482-2981 or 1-866-881-2723


http://www.archlegalclinic.ca

ARCH provides free legal information relating to disabilities including: Discrimination, Mental capacity, Education, Estate

planning, Employment, Abuse, Transportation, Immigration, Attendants

ARCH can also refer you to your local community legal aid clinic or to lawyers in private practice, where possible.

BARBARA SCHLIFER CLINIC

Address: 489 College Street, Suite 503, Toronto ON M6G 1A5

Phone: 416-323-9149 ext. 263;

Fax: 416-323-9107

http://www.advocacycentreelderly.org/http://www.advocacycentreelderly.org/http://www.aclc.net/http://www.aclc.net/http://www.archlegalclinic.ca/http://www.archlegalclinic.ca/http://www.archlegalclinic.ca/http://www.aclc.net/http://www.advocacycentreelderly.org/


29/46


TTY: 416-323-1361


http://www.schliferclinic.com/

The clinic offers legal services to women who have experienced partner assault, adult sexual assault, and childhoodsexual abuse. The clinic works in the criminal, family, civil, tribunal, and immigration systems.

THE CHILD ADVOCACY PROJECT (CAP)

Phone: 416-977-4448 ext. 226


http://www.lawhelpontario.org

CAP provides free legal services for at-risk children and youth, including: Representation of young people in education

and disciplinary hearings, Providing advocacy and mediation with school districts

COMMUNITY AND LEGAL AID SERVICES PROGRAMME (C.L.A.S.P.)

Address: Osgoode Hall Law School, York University, 4700 Keele Street, Toronto, ON M3J 1P3

Phone: 416-736-5029;

Fax: 416-736-5564

http://www.osgoode.yorku.ca/clasp/

C.L.A.S.P. is a student legal aid society that helps all low-income people with basic legal problems. It does not require a

legal aid certificate.

DOWNTOWN LEGAL SERVICES (DLS)

Address: Faculty of Law University of Toronto, 655 Spadina Avenue, Toronto ON M5S 2H9

Phone: 416-934-4535

Fax:416-934-4536


DLS is a student legal aid clinic that helps low-income people with a variety of legal issues. It does not require a legal aid

certificate.

HIV & AIDS LEGAL CLINIC OF ONTARIO (HALCO)

http://www.schliferclinic.com/http://www.schliferclinic.com/http://www.lawhelpontario.org/http://www.lawhelpontario.org/http://www.osgoode.yorku.ca/clasp/http://www.osgoode.yorku.ca/clasp/http://www.osgoode.yorku.ca/clasp/http://www.lawhelpontario.org/http://www.schliferclinic.com/


30/46


Address: 65 Wellesley Street, East. Suite 400 Toronto, Ontario M4Y 1G7

Phone: 416-340-7790 or 1-888-705-8889


http://www.halco.org/

HALCO serves low-income people with HIV and AIDS (PHAs) in Ontario.

JUSTICE FOR CHILDREN AND YOUTH: CANADIAN FOUNDATION FOR

CHILDREN, YOUTH AND THE LAW

Address: 415 Yonge Street, Suite 1203, Toronto, ON M5B 2E7

Phone: 416-920-1633 or 1-866-999-5329;

Fax: (416) 920-5855


PARKDALE COMMUNITY LEGAL SERVICES (PARKDALE)

Address: 1266 Queen Street West, Toronto, ON M6K 1L3

Phone: 416-531-2411;

Fax: 416-531-0885

http://www.parkdalelegal.org

Parkdale is a community legal clinic on Queen Street West. It provides free legal advice, assistance, and representation

to low-income residents living in the Parkdale and Swansea area.

THE SOUTH ASIAN LEGAL CLINIC OF ONTARIO PRO BONO PROJECT (SALCO)

Address: 45 Sheppard Ave. E., Suite 106A, Toronto ON M2N 5W9

Phone:416-487-6371;

Fax: 416-487-6456

http://www.salc.on.ca/SALCO%20Website/Home%20SALCO.htm

SALCO provides legal services to meet the unique needs of low-income members of the South Asian community in the

greater Toronto area. SALCO provides legal information, advice, representation, education, and advocacy. SALCO

focuses on the areas of immigration and refugee issues, human rights, housing, family law, and discrimination.

http://www.halco.org/http://www.halco.org/http://www.parkdalelegal.org/http://www.parkdalelegal.org/http://www.salc.on.ca/SALCO%20Website/Home%20SALCO.htmhttp://www.salc.on.ca/SALCO%20Website/Home%20SALCO.htmhttp://www.salc.on.ca/SALCO%20Website/Home%20SALCO.htmhttp://www.parkdalelegal.org/http://www.halco.org/


31/46


Appendix C

Filing documents – what, how and when

THE RULES OF CIVIL PROCEDURE explain the documents for civil cases. The Court of Appeal for Ontario Criminal AppealRules explain the documents for criminal cases. The civil rules govern if there is no criminal rule. The links for the rules

are in the introduction to this Guide. You can also refer to the Court of Appeal website:

http://www.ontariocourts.on.ca/coa/en/

General Information

FILING

Before you can rely on written material in court, you must file it with the court. Filing means that you give the material

to the Court of Appeal staff at the counter. They examine it to make sure that it is in the correct form. If it is, they

approve and stamp the material, and you pay a filing fee. You must file three copies of the material – one for each judge

The deadlines for filing the documents are:

Case Action Deadline

All Notice of Motion for Leave to Appeal 15 days after the order or judgment that is being appealed

All Notice of Appeal if leave given 7 days after

Criminal Notice of Appeal 30 days after sentencing or order

Civil Notice of Appeal 30 days after the order

All Appellant’s Appeal Book, Factum, Book of

Authorities*

30 days after Notice of Appeal OR 60 days after notice that

transcripts are ready

All Respondent’s Appeal Book, Factum, Bookof Authorities

60 days after appellant files all material;

All Transcript (Proof that ordered) 30 days after Notice of Appeal

Criminal Papers and Exhibits Request 14 days after Notice of Appeal

Civil Certificate of Perfection 30 days after Notice of Appeal OR 60 days after notice that

transcripts are ready

Criminal Certificate of Perfection 90 days after transcript filed OR 60 days after Notice of Appeal if

no transcript

*The Court of Appeal for Ontario’s website states the following: The Appellant’s Books of Authorities should be

filed, if possible, with the factum, but if not possible, then not later than Monday of the week preceding the

hearing of the appeal. There is no mention in the Rules of the timing for filing Books of Authorities in an appeal.

IF YOU DO NOT FILE DOCUMENTS ON TIME

If you do not file a document on time, the other party may ask the Registrar to dismiss your appeal

for delay. This happens if you do not meet the deadlines listed above or if 1 year passes from the date of

filing the Notice of Appeal without anything happening.

http://www.ontariocourts.on.ca/coa/en/http://www.ontariocourts.on.ca/coa/en/http://www.ontariocourts.on.ca/coa/en/


32/46


DOCUMENT FORMAT

The materials must be in a particular format. Each book must be cerlox bound (coil bound). Each book should have a

table of contents. The table of contents should state the date of the document as well as its name. Each book should

have consecutive numbers on the top right-hand corner. Everything that you write should be in 12-point font, double-

spaced, with 40mm margins, and with numbered paragraphs.

You should separate different documents in the books numbered tabs. The table of contents should state the tab at

which the document is found.

Different books have different colour covers. You must make sure that you have the correct colour cover:

Case Document Colour

Criminal Appellant’s Appeal Book Buff

Civil Appellant’s Appeal Book and Compendium Buff

Criminal Appellant’s Factum Blue

Civil Appellant’s factum White

Criminal Appellant’s Book of Authorities Blue

Civil Appellant’s Book of Authorities Blue

Criminal Respondent’s Appeal Book Grey

Civil Respondent’s Appeal Book and Compendium Buff

Criminal Respondent’s Factum Green

Civil Respondent’s Factum Green

Criminal Respondent’s Book of Authorities Green

Civil Respondent’s Book of Authorities Green

Criminal Exhibit Book Buff

Civil Transcripts Red

Criminial Transcripts Red

SERVICE

Service is a specific form of delivery in which you give your material to the other party. In civil cases, Rules 16, 17, and 18

govern service. You must file proof of service with the court staff when you file your material. It should either be an

affidavit of service or an admission of service.

In criminal cases, Rule 5 governs service of the Notice of Appeal. Rule 18 governs service of the certificate of

perfection.Usually, the notice of appeal must be served within 30 days of the order appealed from. However, different

statutes have different deadlines. For instance, the Family Law Act requires service within 15 days of the order.

MOTIONS FOR LEAVE TO APPEAL AND IN OTHER CIRCUMSTANCES

Parties bring motions when they need the court to make an interim order. For example, an interim order can give a

party an extension on a deadline. To start a motion, you must file a Notice of Motion.


33/46


In some cases, you must bring a motion for leave to appeal before you can start your appeal (see “Leave to Appeal” page

5). Rule 61.03.1 governs motions for leave to appeal in civil cases. To start this process, you must file a Notice of Motion

for Leave to Appeal. The appellant and respondent must file factums, transcripts, authorities, and exhibits, if necessary.

In most criminal cases, leave to appeal is dealt with at the same time as the appeal. Therefore, you simply file the Notice

of Appeal.

Starting an Appeal: The Notice of Appeal

Every appeal starts with a Notice of Appeal. In criminal cases, the Notice of Appeal is Form B in the Court of Appeal for

Ontario Criminal Appeal Rules. You must file three copies. You do not need to serve the Crown with the Notice of Appeal

because the court will do it for you. In civil cases, the Notice of Appeal is Form 61A in the Rules of Civil Procedure. You

must serve the other parties. If you do not file your Notice of Appeal before the deadline, you can bring a motion for an

order extending the deadline. In civil cases, you can also get the respondent’s written consent to file a late Notice of

Appeal.

Appeal Book/Appeal Book and Compendium

An Appeal Book contains the documents created for the lawsuit that were before the lower court. If you want to add

new material, you must bring a motion to add fresh evidence. A Compendium contains portions of the non-lawsuit

documents that are important, such as contracts.

Every Appeal Book must contain the Notice of Appeal, a copy of the order granting leave to appeal, and any other order

related to the appeal. Appeal Books must also have a copy of the order and the reasons for the order that is being

appealed, unless the reasons are in the transcript.

If the appeal involves a constitutional question, the appeal book should contain a copy of the Notice of Constitutional

Question with proof of service to the Attorney Generals of Ontario and Canada (see “Constitutional Questions” page 41)

If there is an agreed statement of facts, it should be in the appeal book. The last documents of the appeal book should

be the certificate of perfection and the certificate of completeness. In a criminal appeal, if the accused person is

unrepresented, the Crown prepares the appeal book.

In civil cases, the appellant must prepare an Appeal Book and Compendium in one volume. This book contains

everything that an Appeal Book contains. It also has excerpts of the documents, transcripts, and exhibits that you refer

to in your factum. The respondent does not need to prepare an Appeal Book but should prepare a Compendium with

the documents referred to in the factum.

Factum

The factum states the facts and outlines the party’s legal arguments. It must be shorter than 30 pages. There is a sample

civil factum in Appendix D, which fully explains the requirements.

An appellant’s factum has four parts in criminal appeals and five parts in civil appeals. The first part has one or two

paragraphs stating your name and the names of the other parties, the court, judge, date of the order you are appealing

from, and the nature of that order. In a criminal case, you should state the charge and whether you are appealing from


34/46


the conviction, sentence, or both. If you are only appealing your sentence, your factum must be in Form D. In civil

appeals, there is a short overview of the nature of the case and the issues as well (it is a separate part).

The next part has a short summary of the relevant facts, with references to transcripts and exhibits if necessary. The

following part has a statement of each issue followed by your argument with references to the case law and statutes.

The final party contains a statement of the order that you are asking for, including any costs.

A respondent’s factum is similar to an appellant’s factum. The factum should start with a brief overview of the case. The

factum should then list the paragraph numbers in the appellant’s facts that you agree with, disagree with, and have no

knowledge of, as well as a short summary of any additional relevant facts. Note that in a civil case, the overview and the

facts are divided into two parts.

The next part contains a statement of the respondent’s position on each issue. The following part lists any additional

issues that the respondent wants to raise. The final part states the order that you are asking for.

Factums also have two schedules. Schedule A is a list of the authorities referred to in the order in Chapter 3. Schedule B

contains the text of all relevant portions of statutes, regulations, and by-laws, other than the Criminal Code and theYouth Criminal Justice Act.

In civil factums, the parties must also include a certificate stating that an order under subrule 61.09(2) exists or is not

required, and the amount of time in hours that you think that you will need for your oral argument, not including reply.

These statements should come before the signature.

Book of Authorities

A Book of Authorities contains all of the cases that support the legal arguments you make in your factum. You must

highlight the passage you want the judges to read either with a highlighter or with a think black line beside the

important paragraph.

You should file your Book of Authorities at the same time as the factum. You can also file a joint casebook if the parties

agree. A joint casebook is one casebook that both parties agree to.

Transcripts

If you already have a transcript of the trial, you can file that transcript with the rest of your material. If a transcript is

needed, within 15 days of filing the Notice of Appeal you must file proof that you ordered the transcript.

The court reporter will usually require payment for the transcripts before giving you a Court Reporter’s Certificate. Each

day of evidence will cost between $500 and $1000.

Exhibits

In civil cases, parties prepare exhibit books. These books contain the exhibits entered at trial. It is an emergency

reference because everything that you intend to refer to should be in the Appeal Book and Compendium. Because it is

for emergencies only, you only need to file one copy. It should have a table of contents, the affidavit evidence,

transcripts, and then the exhibits filed at the hearing.


35/46


In criminal cases, if there are any original papers or exhibits that the Court of Appeal must consider you must file an

Original Papers and Exhibits Request within 14 days of the Notice of Appeal.

Certificate of Perfection

The appella

Court Of Appeal Handbook

Documents

Transcript of Court Of Appeal Handbook