court of appeal handbook (brh 18jan2010)

8/3/2019 Court of Appeal Handbook (BRH 18Jan2010)

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Court of AppealHandbookA guide to representing yourself

at the Court of Appeal of Ontario

A guide to representing yourself

at the Court of Appeal of Ontario


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Court o AppealHandbook

A guide to

representing

yourself at the Court

of Appeal of Ontario

Prepared as a pro bono project by the Clerks

or the Court o Appeal or Ontario, 2004


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Note

HIS HANDBOOK WAS PREPARED as

a pro bono project by the Clerks or the Court

o Appeal or Ontario, to assist and to

provide useul suggestions to litigants involved

in civil and criminal appeals beore the Court oAppeal. While every eort was made to ensure

completeness and accuracy, the reader should be

aware that the applicable law, statutes and rules

may change rom time to time. Please reer to

the reerences contained in this handbook and

conrm that any statements made are complete

and remain current. Links to web site resources

are provided throughout this manual. I you

encounter a broken link, use your browser

to conduct a key word search or the missingresource. I possible, please report the broken

link to us at [email protected].

Tis is not an ocial document o the Court

o Appeal and thereore does not bind the Court

in the event o any confict with a law, statute,

rule or practice o the Court.


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ContentsINRODUCION 4

CHAPERS

1. Should I appeal to the Court o Appeal or to a dierent court? 5

. How do I build my argument? 11

3. How do I do legal research? 17

. What are the risks o appealing a case? What are costs?

5. How do I present my case in court? 5

6. Conclusion 9

APPENDICES

A. Glossary 3

B. Legal clinics and lawyer reerral services 3

C. Documents you must le what, how and when 36

D. Writing and ling your actum or civil appeals

E. A guide to inmate appeals 5
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Court of Appeal Handbook pblo 2009 4

IntroductionHow to use this handbook

HIS HANDBOOK will help you answer these questions:

1. Should I appeal to the Court o Appeal or to a dierent court?

. How do I build my legal argument?3. How do I do legal research?

. What are the risks o appealing the decision against me? What are the costs?

5. How do I present my case in court?

Representing yoursel is dicult. You should ask a lawyer to review your documents, help you

develop your argument, and help with legal research. I you cannot aord a lawyer to do some work,

you can look or a legal clinic that will help you or ree. Legal aid clinics are listed in Appendix B.

You can also read the assistance provided on the Court o Appeal website at:

http://www.ontariocourts.on.ca/coa/en/shp/civil.htm

Tis Guide reers to three kinds o laws: statutes, rules, and case law. Statutes are laws passed by

the government. You can nd 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 ollow in an appeal. Te Rules o Civil Procedure apply to civilcases. You can nd them in a law library or at:

http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+

CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.html

Te Ontario Court o Appeal Criminal Appeal Rules apply to criminal appeals. Tese Rules can be

accessed at: http://laws.justice.gc.ca/en/C-46/SI-93-169/80594.html

You must also be aware o Practice Directions, which are dierent in each court. You can nd the

Court o Appeal Practice Directions on its website at:

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

Case law contains a judges reasons or deciding a dispute in a certain way. Case law is importantbecause in order to ensure consistency, a judge will decide the case beore him or her in the same way

that a similar previous case was decided. Case law is discussed in Chapter 3.
http://www.ontariocourts.on.ca/coa/en/shp/civil.htmhttp://www.e-laws.gov.on.ca/http://laws.justice.gc.ca/enhttp://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://laws.justice.gc.ca/en/C-46/SI-93-169/80594.htmlhttp://www.ontariocourts.on.ca/coa/en/notices/http://www.ontariocourts.on.ca/coa/en/notices/http://laws.justice.gc.ca/en/C-46/SI-93-169/80594.htmlhttp://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://laws.justice.gc.ca/enhttp://www.e-laws.gov.on.ca/http://www.ontariocourts.on.ca/coa/en/shp/civil.htm


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Te Court Structure in Ontario

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

Justice, and the Court of Appeal for Ontario.

e Ontario Court of Justice has judges and justices of the peace. Justices of the peace hearprovincial oence cases. Judges hear all other criminal cases, child protection cases, and appeals from

decisions of justices of the peace.

e 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.

Te rest of the Court hears all other criminal and civil cases and appeals from the Ontario

Court of Justice.

Should I appeal to the Court ofAppeal or to a dierent court?

1.

CourtofAppeal

forOntario

SuperiorCourt

ofJustice

Divisional Court Family Court

Small Claims

OntarioCourtofJustice

Judges

Justices of the Peace


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As you can see, some cases must be appealed to the Superior Court beore they can be appealed

to the Court o Appeal. I you bring your appeal to the wrong court, that court will send you to the

correct court and you will have to pay all o the court ees again.

Te rules that govern which court has jurisdiction over your appeal are dierent or ederal oences,

provincial oences, and civil actions. Te 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 or permission. Tis

is called getting leave to appeal. Usually you do not need leave to appeal or the rst time that the

decision is appealed.

For an indictable oence (see Federal Oences page 7), you will need leave to appeal:1. On a question o act or mixed law and act (see Identiy the Mistakes page 1).

. Against your sentence.

3. On any other ground.

I your appeal o a summary conviction has been dismissed by the Superior Court, and you wish

to appeal to the Court o Appeal, you can only appeal on a question o law (see Identiy the Mistakes

page1) and you must get leave.

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

I you are in jail and wish to be released on bail beore your appeal, you must get leave beore you are

granted bail.

Criminal Appeals: Federal Oences or Provincial Oences

Te court to which you should bring your appeal will depend on whether you are charged with a

provincial oence or a ederal oence.

PROVINCIAL OFFENCES (See Flow Chart A)Te Provincial Oences Act explains which oences are provincial oences. Provincial oences

include oences in:

Te Highway rac Act Te Occupational Health and Saety Act

Te Provincial Oences Act

A Municipalitys By-laws

I you are convicted o a provincial oence, you usually cannot appeal the conviction to the Court o

Appeal unless you have appealed it to a lower court rst.


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o appeal your case, rst you must look at the document that sets out the charge or charges

against you. Tis document may be called an inormation, an oence notice, a summons,or a parkinginraction notice. I the document charging you is an oence notice, a summons, or a parking inraction

notice, then you appeal to the Ontario Court o Justice. I it is an inormation, you appeal to the

Ontario Court o Justice i you were convicted by a justice o the peace, and to the Superior Court o

Justice i you were convicted by a judge. I you have already appealed to these courts, then you must

apply or leave to appeal to the Court o Appeal.

FEDERAL OFFENCES See Flow Chart BI you have been convicted o a criminal oence, an oence involving drugs, or an oence relating to

income taxes, you have been convicted o a ederal oence.

I you were convicted o a criminal oence that does not involve drugs, you were convicted under

the Criminal Code. I you were convicted o a drug oence, you were convicted under the Controlled

Drugs and Substances Act. I you were convicted o an oence related to your taxes, you were convicted

under the Income ax Act.

SupremeCourtof Canada

Court of Appeal

for Ontario

Ontario CourtofJustice

SupremeCourtofJustice

Document charging youwas an offence notice,summons or parking

infraction notice

Document charging youwas an information andyou were convicted by a

Justice of the Peace

Document charging youwas an information andyou were convicted by a

Judge

ConvictedofaProvincialOffence

with leave

with leavewith leave

FLOWCHARTA


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APPEALING FINAL ORDERS (See Flow Chart D)

In general, if you are appealing a nal 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 $500 or

personal property worth more than $500

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

will have to obtain leave to appeal to the Court of Appeal (see Leave to Appeal page 6).

If the nal order you are appealing does not fall into one of these three categories, then your appeal

should go to the Court of Appeal. Tere are exceptions to this general rule that cannot be covered here.

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

FLOWCHARTD

SupremeCourtofCanada

CourtofAppealforOntario

DivisionalCourt

with leave

SmallClaimsCourt

MasterJudge less than$50,000

Judgehearingjudicialreview

Certificateof

Assessmentof costs inCourt ofAppeal

Judge more than$50,000

S.19(1)(a)Courts of

Justice Act

S.19(1)(c)Courts of

Justice Act

S.31Courts of

Justice Act

S.6(1)(b)Courts ofJustice Act

S.6(1)(c)Courts ofJustice Act

with leave with leave


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How do I buildmy argument?

2.

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

I you are the appellant, you need to know the grounds or your appeal to put them in your Notice o

Appeal (see Appendix C).

Tis 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 rom one o the legal clinics listed in Appendix B.

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

Some ips Beore You Start

Te key ingredients o success on appeal are planning, preparation, and hard work. Judges will have

little patience or you i you have not prepared and i your argument appears emotional.

You must persuade the three judges on the panel to see the acts and the law as you do. Te art o

persuasion begins by recognizing what kind o arguments will be the most persuasive and ends once

you have thoroughly developed those arguments. Here are some general tips:

1. BE PREPARED

I you come to the court well prepared, you will instantly gain credibility with the judges. You must

be amiliar with the acts o the case and the law that applies to them. You must have thought out your

arguments.

2. BE CREDIBLEJudges are human, and i 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 o their case. I you can do

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

3. BE REASONABLEAs an unrepresented litigant, you are probably emotionally invested in your case. It is important to

remember that the Court o Appeal must decide the case reasonably and in accordance with the law.

Te more you look at your arguments rom an outsiders perspective, the more likely it is that you can

make your arguments reasonable and persuasive.


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Building Your Written and Oral Argument

You have two opportunities to make your argument to the Court o Appeal: in written orm in aactum and in oral argument. An example o a actum is provided in Appendix D. Eective strategies

or presenting your oral argument are discussed in Chapter 5.

In many ways, your actum is the more important o the two. You submit your actum beore you

make your oral argument. Te judges read it beore they see you, and they may orm an opinion beore

you open your mouth. I you can state your arguments persuasively in written orm, you will have gone

a long way toward winning your case.

I you are the appellant, your goal should be to complete the ollowing sentence: Te lower court

judge made an error, or the ollowing reasons. I you are the respondent, your goal is to complete this

sentence: Te lower court judge did not make the error the appellant says, or the ollowing reasons.

STEP 1 READ THE LOWER COURT DECISION AND RELATED MATERIALSTe rst thing you should do is read the lower court decision you are appealing. Read it careully

and more than once. You are looking or legal or actual mistakes that give the Court o Appeal a legal

reason to overturn the decision. Tese mistakes are not easy to nd because judgments can be ull o

legalese. You may have to research to understand the judgment.

Reading a Decision

Te best way to try to nd a mistake is to understand the legal issues in the case. Usually, the judge

will list the issues at the beginning or end o the judgment or as headings throughout the decision.Ater you identiy the issue, you should nd out what the trial judges decision on that issue

was. For example, in a breach o contract case, the trial judge will either nd that there was a breach

o contract or that there was no breach. In a criminal case, the trial judge will either nd that the

deendant is guilty or not guilty.

Te next step is to nd out how the trial judge came to that legal conclusion. Legal conclusions are

always supported by two things: (1) ndings o act and () decisions about the law.

Findings o Fact

Findings o act may deal with something the parties agreed on or with something that the parties

disagreed about. Oten a trial judge will identiy ndings o act by writing I nd that or I makethe ollowing ndings. However, i a judge states anything as act, even without a clear introductory

phrase, the Court o Appeal will treat it as a nding o act.


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Findings o Law

Te judge will apply a legal test to the acts to decide the case. Te 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

nd that the parties (1) had a contract and () that it was broken to award damages.

In a criminal case, the Criminal Code will state the actual elements that have to be met beore a

person can be ound guilty. For example, in a robbery case, a judge must nd that the accused (1) stole

rom the victim and () used violence or threats o violence. I the accused did not use violence, the

accused will not be guilty o robbery but o thet.

Reading ranscripts

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

judges charge to the jury because most errors o law occur in that charge. In some civil cases, transcripts

can be useul i your appeal relates to something that happened in the trial.Te rst reason to read the transcripts thoroughly is to nd unair decisions about procedure.

Tese can be important in criminal cases.

Second, the transcripts contain the trial judges instructions to the jury. Tese instructions may

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

the jury.

Te third reason to read the transcripts is that the evidence given at trial may be dierent rom the

judges ndings o act. I that is so, the trial judge may have made an error and that could be a ground

o appeal.

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

need to be amiliar with the evidence beore you write your actum and prepare your oral argument.

Tere is no correct way to approach transcripts except to read them rom start to nish. ranscripts

can be long, boring, and repetitious. Even so, you must amiliarize yoursel with them. You can be sure

the judges will.

Reading Everything Else

Tere may be other documents involved in your appeal. I you are charged with a criminal oence,

there will be an inormation or an indictment, which sets out the charges against you. Tere may be

adavit evidence or exhibits that are important to your case. Commercial cases may involve contracts.

Family cases may involve separation agreements.All o the material that was evidence presented at trial may be important to your appeal, and you

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

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


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STEP 2 IDENTIFY THE MISTAKES YOU WILL ARGUETe appellant must show how the judge made an error that justies overturning the decision. Te

error must have aected the decision. Sometimes a judge will make an error that does not aect the

nal decision. Te Court o Appeal will not overturn the decision because the error did not aect the

bottom line. You have to show that i the trial judge did not err, the decision would have been dierent.

Te appellant must show where the trial judges mistake is. In your actum, you should state

the paragraph o the judgment or the page o the transcripts where the mistake was made. In oral

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

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

the error does not justiy overturning the decision.

Te dierent kinds o mistakes are:

Mistakes o act

Mistakes o law Mistakes o act and law

Mistakes o Fact

Te Court o Appeal may nd that a trial judge made an error about the acts o the case that

justies overturning the decision. However, this is the hardest kind o argument to make.

Te Court o Appeal will only overturn decisions because o mistakes o acts i the mistake is

obvious and i it is important to one o the legal conclusions reached by the judge. Tis was stated in a

Supreme Court o Canada case called Housen v. Nikolaisen. Courts o appeal cannot overturn decisions

because o actual errors unless those errors are palpable and overriding. I a mistake is not important

enough to the issues, the Court o Appeal will not overturn the decision. Tereore, proving that a

witness lied will not be enough to win your appeal.

Sometimes claiming that the trial judge made a mistake o act will be the only argument that you

can make. Tis is especially true in criminal cases, where the legal test is usually clearly set out in the

Criminal Code. I so, the best way to persuade the judges that a mistake o act justies overturning a

decision is to identiy the mistake clearly, state why it is obvious, and state why it is important to the

legal issues o the case.

Mistakes o Law

It is easier to win an appeal i the judge made a mistake o law because an error o law does not haveto be obvious or important to justiy overturning the decision. Te Court o Appeal may intervene

even i the mistake is small. However, you will have to show why the trial judge would have reached a

dierent conclusion i he or she did not make that mistake.

Te most common types o mistakes o law are:

Mistakes applying a statute

Mistakes applying case law


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Mistakes Applying a Statute

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

under the Criminal Code, the trial judge may orget that violence is necessary to prove that oence.

You should look at the language o the statute itsel. 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 nding these cases, see the section on legal research in Chapter 3.

Mistakes Applying Case Law

Sometimes the legal test comes rom cases. A lower court judge may have interpreted those cases

incorrectly. Te best way to try to nd out the test that should have been applied is to look or the

leading cases in the relevant textbooks and then to read them.

Te best cases are those that are recent, those that are decided by appeal courts (especially by the

Ontario Court o Appeal) or the Supreme Court o Canada, and those that have similar acts to yourcase. I you can show that the Court o Appeal made the decision that you want it to make in a similar

case, you have a very persuasive argument.

Mistakes o Fact and Law

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

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 FACTSSome o the acts in your case will support the argument you want to make, some will not. Te

acts are important to your actum, where you will set them out concisely. Tey are also important to

the legal argument you make both in your actum and orally.

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

Tey also win because they can tell a good story about why they should win. You have to be able to tell

the Court o Appeal why it would be unair or you to lose. o do so, you have to be able to marshal the

acts into a convincing narrative or story.

Lawyers oten make lists o good acts and bad acts. Ten they organize the good acts into an

argument that supports their position, and they try to nd reasonable explanations or the bad acts.

You must not hide the bad acts or lie. Instead, tell your story in a convincing and reasonable way tobuild a solid oundation or a strong legal argument.

STEP 4 DO LEGAL RESEARCH

Every argument you wish to make will be more persuasive i you can point to other legal authority

that agrees with your position. Te best legal authority is usually case law.


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Te only cases that are binding on the Court o Appeal or Ontario are other Court o Appeal

or Ontario cases and Supreme Court o Canada cases. Binding means that the court must do the

same thing in your case as in the other case. Decisions by other courts o appeal in Canada or in lower

Ontario courts are persuasive, but they are not binding. I you are going to use non-binding legal

authority, you must be prepared to argue why the Court o Appeal should ollow the reasoning in that

case.

I 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 MAKEDont make too many arguments. Even i you nd several mistakes, it is best to take more time to

argue the most important mistakes. Tis is especially true in oral argument, where you may want to

limit yoursel to two or three o the most persuasive errors. I you try to argue ten or twelve points,your weaker arguments may drown out your stronger ones.

STEP 6 ARGUMENTS YOU CANNOT MAKENever 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.


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3.

Introduction

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

nished this research, you will be able to eectively state your legal arguments. Also, ater each legal

point that you make in your actum, you must write the case name, statute, or other authority that youuse to support the point.

Te best place to do research is in a law library. Contact your local public library to nd out

about any law databases that may be available. In oronto, you can access LawSource at the oronto

Reerence Library (789 Yonge Street). LawSource contains a large database o Canadian case law,

legislation, and other sources.

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

University o oronto. Its website can be accessed at:

http://www.law-lib.utoronto.ca/

You can also use the library at Osgoode Hall Law School. Its website is at:

http://library.osgoode.yorku.ca/Both websites have links to other resources. You can also research at the law libraries at Ottawa

University, Queens University, University o Western Ontario, and Windsor University.

Another place to do legal research is Te Great Library, which is located in Osgoode Hall, 13

Queen St. West, oronto. It is in the same building as the Court o Appeal. However, be aware that

subscription computer databases are restricted to lawyers only. It has a website that lists other useul

resources at:

http://library.lsuc.on.ca/GL/home.htm

It also has branches around the province. See:

http://library.lsuc.on.ca/GL/collections_libraries.htmTis page has links to Canadian law libraries and textbooks, and discusses the Canadian legal system:

http://www.llrx.com/features/ca.htm

Finally, this site is a good source o general legal inormation:

http://www.cleo.on.ca/english/pub/pub.htm

How do I do legalresearch?
http://www.law-lib.utoronto.ca/http://library.osgoode.yorku.ca/http://library.lsuc.on.ca/GL/home.htmhttp://library.lsuc.on.ca/GL/collections_libraries.htmhttp://www.llrx.com/features/ca.htmhttp://www.cleo.on.ca/english/pub/pub.htmhttp://www.cleo.on.ca/english/pub/pub.htmhttp://www.llrx.com/features/ca.htmhttp://library.lsuc.on.ca/GL/collections_libraries.htmhttp://library.lsuc.on.ca/GL/home.htmhttp://library.osgoode.yorku.ca/http://www.law-lib.utoronto.ca/


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For Ontario laws, the government lists all statutes at:

http://www.e-laws.gov.on.ca

Both websites have search unctions that can help you nd the correct statute. Law libraries also have

printed versions o the statutes.

Note that when you are preparing statutes or Schedule B o your actum, you cannot use the online

version o ederal statutes because they are not ocial (see Appendix C). Instead, you must photocopy

the statute rom the books in a law library.

4. CASESTis is the most important part o your research because previous cases determine how a court will

rule in your case. One o the best ways to nd the names o key cases is in textbooks.

Tere are also ree websites that oer access to cases. Te largest is:

http://www.canlii.orgwhich has collections rom the Supreme Court o Canada, the Court o Appeal or Ontario, and some

Superior Court Judgments. You can also access cases on court websites. For example:

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

provides links to the Court o Appeal or Ontario;

http://csc.lexum.umontreal.ca/en/

provides access to decisions o the Supreme Court o Canada.

Tere are also commercial electronic caselaw services. You cannot access these at home. Tey are

expensive to access, but you can get ree access to the LawSource component o WestlaweCARSWELL

at the oronto Reerence Library as well as some other oronto Public Library branches. For more

inormation on WestlaweCARSWELL, visit:

http://www.westlawecarswell.com

You must make sure you have the most recent case on the subject. A good way to do this is in a

database is through the note up unction. You can also note up a case in the Canadian Case Citations

books in the library. Noting up a case means nding out i that case has been considered by another

court or overturned. Tis is the only way to make sure that the case you are reerring to is current.

Note that only the decision o the Court o Appeal or Ontario and the Supreme Court o Canada

provide precedents that are binding decisions or courts in Ontario.

Courts o Appeal and lower courts rom other provinces are persuasive but will not orce the Court

o Appeal or Ontario to decide a case in a particular manner. Because Quebec has a very dierent legalsystem, Quebec cases on amily or civil law are not persuasive in Ontario.
http://www.e-laws.gov.on.ca/http://www.canlii.org/http://www.ontariocourts.on.ca/decisions_index/en/http://csc.lexum.umontreal.ca/en/http://www.westlawecarswell.com/http://www.westlawecarswell.com/http://csc.lexum.umontreal.ca/en/http://www.ontariocourts.on.ca/decisions_index/en/http://www.canlii.org/http://www.e-laws.gov.on.ca/


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4.

IF YOU LOSE A CIVIL APPEAL, you can be ordered to pay the other sides legal expenses, which

can be tens o thousands o dollars.

I you are appealing a criminal case, you do not need to worry about costs.

When a civil trial or appeal is nished, a judge can order one side to pay the legal expenses o the

other side. Tis payment is called a costs award. Costs are not a ne or a punishment.

How Costs Work at the Court o Appeal

Costs are important in three situations:

YOU WANT TO START AN APPEALYou should understand the nancial risks o starting an appeal. I you win, you may not have to pay

the costs order made at trial. I you lose, you may have to pay the expenses o the other party or the

trial and appeal.

THE OTHER SIDE STARTS AN APPEAL AGAINST YOU

You should understand the nancial risks o responding to an appeal. I you win, you can ask

the Court to order the other side to pay costs. I you lose, you may have to pay the other sides legal

expenses or the appeal.

YOU ONLY WANT TO APPEAL THE TRIAL JUDGES COSTS ORDERYou can appeal a costs order without appealing the case. Make sure that you are in the right court

by reading sections 6 and 19 o the Courts o Justice Act. Tis statute is in libraries and is on:

http://www.e-laws.gov.on.ca

Legal Rules About Costs

Te Rules o Civil Procedure explain when costs are ordered. Rule 58 applies to trials; Rule 61 applies

to appeals. You can nd the rules in a law library or at:

http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+

CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.html

What are the risks o appealinga case? What are costs?
http://www.e-laws.gov.on.ca/http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/on/laws/regu/1990r.194/20080716/whole.htmlhttp://www.e-laws.gov.on.ca/


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Who Pays Costs

Te side that loses an appeal usually has to pay the costs o the side that wins. Beore you appeal a case,you must decide whether to risk havi;ng to pay the other partys legal expenses, which could be in the tens o

thousands o dollars. You may wish to talk to a lawyer about your chances o success beore bringing an

appeal.

A judge does not have to order the loser to pay the winners costs. Sometimes, no costs will be

ordered. Tis is rare and usually happens when a new legal issue is argued or the rst time. Sometimes

the winner may have to pay the losers costs. For example, costs can be awarded against a winner who

did not comply with the Rules o Civil Procedure.

Costs Against a Sel-Represented Person

Sel-represented people do not receive the same kind o costs that people with lawyers receive. Costs

cover the legal expenses that result rom litigation. A person without a lawyer does not have to pay a

lawyer.

A sel-represented person must provide receipts that prove that he or she lost money as a result

o doing work that a lawyer would normally do. Tis could include travel expenses, photocopying,

transcripts, time o work, or child-care expenses. A person without a lawyer will not receive costs or

things that all litigants must do, like coming to court.

I you are representing yoursel and you request costs rom the other side, you should read Fong v.

Chan, which explains everything summarized above. You will be able to nd this case in any law libraryor at:

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

Asking or Costs at the Court o Appeal

I you want the Court o Appeal to order the other side to pay costs, you must ask or costs in your

Notice o Appeal and at the end o your actum.

I you lost at trial and want the other side to pay the costs that were awarded at trial, you need to

ask or costs below. Tis is dierent rom appealing a costs order. I you appeal a trial judgment and

win, you will probably get an order saying that the other side has to pay costs below. You get those costsbecause you should have won your case the rst time.
http://www.ontariocourts.on.ca/decisions/1999/December/fong.htmhttp://www.ontariocourts.on.ca/decisions/1999/December/fong.htm


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Appealing Costs Orders

Appealing a costs order means that you want the Court to change the amount o costs you wereordered to pay at a trial. You can appeal a costs order alone or at the same time that you appeal the trial

decision. Even i you lose your appeal, the court may reduce the costs order.

You must always ask or leave to appeal a costs order. I you are appealing the both the trial

judgment and the costs order, you must ask or leave in your Notice o Appeal. I you orgot to ask

or leave in your Notice o Appeal, you can le a Supplementary Notice o Appeal asking or leave

to appeal costs. However, you can only le the Supplementary Notice o Appeal i you have not yet

perected your appeal (see Appendix C).

I your appeal is perected, you must request leave in your actum and then explain why the costs

order should be changed. See Byers v. Pentex at:

http://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htmI you decide to appeal only the costs order and not the main judgment, then you must make a

Motion or Leave to Appeal. Te rules governing motions or leave to appeal are in Rule 61.3.1. 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. I you are unsure,

you should seek legal advice.

A motion or leave to appeal is made in writing; there are no oral arguments. You must le a Notice

o Motion stating that you intend to ask or leave to appeal. Next, you must le a actum requesting

leave to appeal the costs order rom trial and explain why your appeal should be granted. In your

Notice o Motion and your actum, you should also ask the Court o Appeal to award to you your costsor the motion.

o win an appeal on costs, you must show that the trial judge based the decision on the wrong legal

principle. Tis standard is higher than the regular standard or appeal: you have to show that the trial

judge made a material and obvious mistake and was not considering the right actors.

Costs appeals usually ail. I you lose the appeal, you will probably have to pay the cost o the

appeal and o the motion or leave to appeal. Consult a lawyer beore you decide to take this risk to see

whether you could win.
http://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htmhttp://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htm


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Te Facts on the Facts

Te Court o Appeal usually accepts the acts as the trial judge ound them. You should try to rely onthe acts as the trial judge ound them. However, i you can show that the trial judge made an obvious

mistake or ailed to review the evidence, then you will have shown a legal error.

Because the Court o Appeal is not a place to re-examine the acts, you should only bring up acts

that you think the trial judge misunderstood or ailed to consider. You cannot rely on new evidence or

acts without asking the courts permission in a motion to admit resh evidence.

Keep in mind that i the trial judge ound one version o the acts, it is extremely dicult to have

the Court o Appeal make a dierent decision about a particular version o the acts. See Mistakes o

Fact page 1. Make sure that you ocus your argument on the law and not just on the acts.

What Not o Do

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

arguments.

Do not go over all the acts because the judges read the material. Highlight the acts that

support your argument.

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

Do not behave rudely and do not lose your temper. Lawyers reer to each other as my riend

and to everyone else as Mr. or Ms. X.

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

Te Appellants Argument

THE OPENINGStart with one sentence explaining the context o the appeal, such as Tis is an appeal rom a

divorce judgment. Explain in one sentence the decisions o the lower courts. Ten give the judges a

map or summary o your arguments. Tis makes it easier or the judges to ocus on what is important.

A good road map is: In my argument I will show the trial judge erred in two/ three/ our ways. Ten

list the errors. Finish your opening by stating what remedy or order you are asking or.

THE ISSUES

Start with your strongest argument. In each argument review the important acts and law. Ten

apply the law to the acts, and state your conclusion.


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Review the Facts

Te judges have reviewed the materials and know the acts. You may want to quickly review the

parts o the trial judges decision that you are going to deal with and the acts that are important to the

appeal.

Review the Law and Apply It to the Facts

Tis is the meat o your argument. You do not need to do a long review o the law. Rather, use your

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

ound.

Make sure that the judges have a copy o the case and highlight which part o the case relates to

your case. Te case should be in your Book o Authorities. I 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 nal 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 i 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.

Te Respondents Argument

Te purpose o the respondents argument is to respond to the appellants arguments. You must show

why the trial judge was correct. You should respond to the appellants actum; 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.

Te structure o the respondents argument is the same as the appellants: you need an opening, a

discussion o the issues, and a conclusion.

You should always leave time or questions rom the judges. You should never argue that the

appellant is a bad person or company.

Te Appellants Reply

Ater the respondent has spoken, the appellant will have ve to ten minutes to respond to what the

respondent has said. Te reply is important to the appellants argument because it lets the appellant

contradict any acts 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.


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Be careul. You want to leave the judges with a positive impression o your argument. Do not

reply just or the sake o replying. Make sure you have something important to say in response to the

respondents argument.

Civility and Politeness

Te way you behave is very important. You will get your point across more eectively i you are polite

and respectul to the judges and the other party, and you stay within your time. ry and answer

the judges questions in a straightorward and direct way. Tis is not a court where the parties are

conrontational or argumentative.

I you would like urther tips on arguing your case you may want to read the ollowing articles,

available in most law libraries:

Binnie, Ian, In praise o oral advocacy (Spring 3) 1 Advocates Soc. J. No. , 318. Catzman, Marvin, Te wrong stu: How to lose appeals in the Court o Appeal Summer

) 19 Advocates Soc. J. No. 1, 15.

Catzman, Marvin, Te wrong stu: ip 8 (Summer ) 1 Advocates Soc. J. No. 1, 1.

Catzman, Marvin, Losing tip no. 1: Openers and closers (Autumn ) 3 Advocates Soc.

J. No. , 1.

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

Advocates Soc. J. No. , 5.

Laskin, John I., What persuades (or, What is going on inside the judges mind) (Summer

) 3 Advocates Soc. J. No. 1, 9.

Robins, Sydney L., Appellate advocacy (October 1997) 16 Advocates Soc. J. No. 3, 1115.

Sopinka, John, Appellate Advocacy (March 199) 11 Advocates Soc. J. No.1, 16.


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6.

HIS HANDBOOK HAS EXPLAINED how to put together an appeal at the Court o Appeal

or Ontario. It is a good starting point or your case. However, you must take the time to amiliarize

yoursel with the Rules o Civil Procedure, the Practice Directions, and the legal arguments that you

will make. Preparation is critical to your success.

Conclusion


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APPENDIX

A.

GlossaryAppeal Book: Te Appeal Book contains the inormation that the lower court judge had beore him.

It makes it easy or the judges to look at the important inormation, such as the lower court judges

reasons.

Appellant: Te appellant is the party bringing the appeal.

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

Compendium: Te Compendium contains the inormation that is critical to your argument, such asportions o the transcript or important contracts.

Costs: When a civil case is nished, a judge can order one side to pay the legal expenses o the otherside. Tis payment is called a costs award.

Factum: A actum is a written document that each party gives to the court that outlines the argumentthat party will make. It has a set structure and must include a list o sections. See Appendix B.

Federal Ofence: I you have been convicted o a criminal oence, an oence involving drugs, or anoence relating to income taxes, you have been convicted o a ederal oence.

Final Order: Final orders include judgments that hold you responsible or damages or that dismiss thecase. In general, i a decision or a motion brings an action to an end, then it is a nal order.

An Inormation: An Inormation 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 ocer o the court who presides over a case.

Judgment: Te courts nal decision about the parties claims resolving the dispute about acts and law.

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

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

Master: A judicial ocial appointed to act as the courts representative.


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APPENDIX

Misapprehend: A judge misapprehends the acts when he or she does not consider a particular act ormisunderstands the evidence. I this misunderstanding aected the nal decision, then that judge

erred.

Motion: A motion asks or an order about a procedural issue, such as admitting resh evidence,granting leave to appeal, or granting bail.

Noting Up: Noting up a case requires checking all o the decisions made ater that case to see i a courthas overturned it, criticized it, or accepted it.

Ofer to Settle: An oer to settle is an oer that one party makes to the other party to try to resolvethe dispute without going to court. Te oer happens ater court proceedings start but beore the

trial or appeal ends.

Ofence Notice: An Oence Notice sets out the charges against you.

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

Party: A party is a person, corporation, or association that is suing someone or being sued in a civilcase. In a criminal case, the parties are the person who is accused o a crime and the Crown.

Provincial Ofence: A provincial oence is an oence under the Highway rac Act, the OccupationalHealth and Saety Act, the Provincial Oences Act, or a Municipalitys By-laws.

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

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

Reviewable Error: A legal error or an error o act that aected the decision. In other words, i thejudge had not made the legal or actual 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 othersubject.

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

Summons: A summons sets out the charges against you.


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APPENDIX

B.

Regional Clinics

AFRICAN CANADIAN LEGAL CLINICS LINKS LISThttp://www.aclc.net/links_to_legal_resources

COMMUNITY LEGAL EDUCATION ONTARIO (CLEO)Address: 119 Spadina Avenue, Suite 6, oronto, ON M5V L1Phone: 16-6-, Fax: 16-6-http://www.cleo.on.ca/

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

you fnd Legal Aid Clinics in your area:

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

HAMILTON COMMUNITY LEGAL CLINICS

http://www.hamiltonlegalclinics.ca/index.php?page=index

LAWYERLOCATE.CAhttp://www.lawyerlocate.ca/lawlinks/community.asp

LAWYER REFERRAL SERVICEPhone: 1-9-565-577Tis service provides a hal-hour consultation with a lawyer at 1-900-565-4577. A $6 charge will be added

to your phone bill.

LEGAL AID ONTARIOhttp://www.legalaid.on.ca/

Legal Aid provides fnancial assistance to get a lawyer i you qualiy under their eligibility criteria, including

the area o law and your income.

Legal clinics andlawyer reerral services
http://www.aclc.net/links_to_legal_resourceshttp://www.cleo.on.ca/http://www.cleo.on.ca/english/pub/onpub/subject/legal.htmhttp://www.hamiltonlegalclinics.ca/index.php?page=indexhttp://www.lawyerlocate.ca/lawlinks/community.asphttp://www.legalaid.on.ca/http://www.legalaid.on.ca/http://www.lawyerlocate.ca/lawlinks/community.asphttp://www.hamiltonlegalclinics.ca/index.php?page=indexhttp://www.cleo.on.ca/english/pub/onpub/subject/legal.htmhttp://www.cleo.on.ca/http://www.aclc.net/links_to_legal_resources


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APPENDIX

VOLUNTEER LAWYERS SERVICE (VLS)http://www.volunteerlawyers.org

VLS develops, implements, and coordinates strategies to promote pro bono legal services in Ontario

through non-proft and charitable community based organizations. VLS provides pro bono legal assistance,

inormation seminars, a speakers bureau, and actual resource material.

Specialty Legal Clinics

Tese legal clinics serve only certain groups o people. I you t into the service group or one o these

clinics, then you may contact them or help.

THE ADVOCACY CENTRE FOR THE ELDERLY (ACE)

Address: Carlton St., Suite 71, oronto, ON M5B 1J3Phone: 16 598-656http://www.advocacycentreelderly.org/

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

low-income seniors.

AFRICAN CANADIAN LEGAL CLINIC (ACLC)Address: 111 Richmond St. W., Suite 53, oronto ON M5H GPhone: (16) 1-77 or 1-888-377-33Email: [email protected]://www.aclc.net/

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

A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES (ARCH)Address: 5 Bloor St. E., Suite 11, oronto, ON MW 3R5Phone: (16) 8-855 or 1-(866) 8-7TTY: (16) 8-15 or 1-(866) 8-78Email: [email protected]://www.archlegalclinic.ca

ARCH provides ree legal inormation relating to disabilities including: Discrimination Mental capacity Education

Estate planning Employment Abuse

ransportation Immigration Attendants

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

possible.
http://www.volunteerlawyers.org/http://www.advocacycentreelderly.org/http://www.aclc.net/mailto:[email protected]://www.archlegalclinic.ca/http://www.archlegalclinic.ca/mailto:[email protected]://www.aclc.net/http://www.advocacycentreelderly.org/http://www.volunteerlawyers.org/


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APPENDIX

PARKDALE COMMUNITY LEGAL SERVICES (PARKDALE)Address: 166 Queen Street West, oronto, ON M6K 1L3Phone: (16)-531-11; Fax: 16-531-885http://www.parkdalelegal.org

Parkdale is a community legal clinic on Queen Street West. It provides ree 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: Carlton Street, Suite 8, oronto, ON M5B 1J3Phone: (16) 5-916 ext. 3; Fax: (16) 5-917http://www.salc.net

SALCO provides legal services to meet the unique needs o low-income members o the South Asian

community in the greater oronto area. SALCO provides legal inormation, advice, representation,education, and advocacy. SALCO ocuses on the areas o immigration and reugee issues, human rights,

housing, amily law, and discrimination.
http://www.parkdalelegal.org/http://www.salc.net/http://www.salc.net/http://www.parkdalelegal.org/


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APPENDIX

C.

HE RULES OF CIVIL PROCEDURE explain the documents or civil cases. Te Ontario Court o

Appeal Criminal Appeal Rules explain the documents or criminal cases. Te civil rules govern i there is

no criminal rule. Te links or the rules are in the introduction to this Guide. You can also reer to the

Court o Appeal website: http://www.ontariocourts.on.ca/coa/en/

General Inormation

FILINGBeore you can rely on written material in court, you must le it with the court. Filing means that you

give the material to the Court o Appeal sta at the counter. Tey examine it to make sure that it is in

the correct orm. I it is, they approve and stamp the material, and you pay a ling ee. You must le

three copies o the material one or each judge. Te deadlines or ling the documents are:

Case Action Deadline

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

All Notice of appeal if leave given 7 days after leave is given

Criminal Notice of Appeal 30 days after sentencing or order

Civil Notice of Appeal 30 days after the order

All Appellants Appeal Book, Factum, 30 days after Notice of Appeal OR 60

Book of Authorities days after notice that transcripts are ready

All Respondents Appeal Book, Factum, 60 days after appellant files all material;

Book of Authorities 10 days before appeal

Transcript (Proof that ordered) 30 days after Notice of AppealCriminal Papers and Exhibits Request 14 days after Notice of Appeal

Civil Certificate of Perfection 30 days after Notice of Appeal (if no

transcripts) 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

Filing documents what, how and when
http://www.ontariocourts.on.ca/coa/en/http://www.ontariocourts.on.ca/coa/en/


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APPENDIX

IF YOU DO NOT FILE DOCUMENTS ON TIMEI you do not le a document on time, the other party may ask the Registrar to dismiss your appeal

or delay. Tis happens i you do not meet the deadlines listed above or i 1 year passes rom the date o

ling the Notice o Appeal without anything happening.

DOCUMENT FORMATTe materials must be in a particular ormat. Each book must be cerlox bound (coil bound). Each

book should have a table o contents. Te table o contents should state the date o 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 1-point ont, double-spaced, with mm margins, and with numbered

paragraphs.

You should separate dierent documents in the books numbered tabs. Te table o contents should

state the tab at which the document is ound.Dierent books have dierent colour covers. You must make sure that you have the correct colour

cover:

Case Document Colour

Criminal Appellants Appeal Book Buff

Civil Appellants Appeal Book and Compendium Buff

Criminal Appellants Factum Blue

Civil Appellants Factum White

Criminal Appellants Book of Authorities Blue

Civil Appellants Book of Authorities Blue

Criminal Respondents Appeal Book Grey

Civil Respondents Appeal Book and Compendium Buff

Criminal Respondents Factum Green

Civil Respondents Factum Green

Criminal Respondents Book of Authorities Green

Civil Respondents Book of Authorities Green

Civil Exhibit Book Buff

Criminal Transcripts Red

Civil Transcripts Red

SERVICE

Service is a specic orm o delivery in which you give your material to the other party. In civil cases,

Rules 16, 17, and 18 govern service. You must le proo o service with the court sta when you le

your material. It should either be an afdavit of service or an admission o service.


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APPENDIX

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

certicate o perection.

Usually, the notice o appeal must be served within 3 days o the order appealed rom. However,

dierent statutes have dierent deadlines. For instance, the Family Law Act requires service within 15

days o the order.

MOTIONS FOR LEAVE TO APPEAL AND IN OTHER CIRCUMSTANCESParties 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. o start a motion, you must le a Notice o Motion.

In some cases, you must bring a motion or leave to appeal beore you can start your appeal (see

Leave to Appeal page 6). Rule 61.3.1 governs motions or leave to appeal in civil cases. o start this

process, you must le a Notice o Motion or Leave to Appeal. Te appellant and respondent must le

actums, transcripts, authorities, and exhibits, i necessary.In most criminal cases, leave to appeal is dealt with at the same time as the appeal. Tereore, you

simply le the Notice o Appeal.

Starting an Appeal: Te Notice o Appeal

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

Ontario Court o Appeal Criminal Appeal Rules. You must le three copies. You do not need to serve

the Crown with the Notice o Appeal because the court will do it or you. In civil cases, the Notice o

Appeal is Form 61A and Form 61C in the Rules o Civil Procedure. You must serve the other parties.

I you do not le your Notice o Appeal beore the deadline, you can bring a motion or an order

extending the deadline. In civil cases, you can also get the respondents written consent to le a late

Notice o Appeal.

Appeal Book/Appeal Book and Compendium

An Appeal Book contains the documents created or the lawsuit that were beore the lower court.I you want to add new material, you must bring a motion to add resh evidence. A Compendiumcontains portions o the non-lawsuit documents that are important, such as contracts.

Every Appeal Book must contain the Notice o Appeal, a copy o the order granting leave to appeal,and any other order related to the appeal. Appeal Books must also have a copy o the order and the

reasons or the order that is being appealed, unless the reasons are in the transcript.

I the appeal involves a constitutional question, the appeal book should contain a copy o the Notice

o Constitutional Question with proo o service to the Attorney Generals o Ontario and Canada (see

Constitutional Questions page 1).


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APPENDIX

Book o Authorities

A Book o Authorities contains all o the cases that support the legal arguments you make in youractum. 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 le your Book o Authorities at the same time as the actum. You can also le a joint

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

ranscripts

I you already have a transcript o the trial, you can le that transcript with the rest o your material.

I a transcript is needed, within 15 days o ling the Notice o Appeal you must le proo that you

ordered the transcript.Te court reporter will usually require payment or the transcripts beore giving you a Court

Reporters Certicate. Each day o evidence will cost between $5 and $1.

Exhibits

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

emergency reerence because everything that you intend to reer to should be in the Appeal Book and

Compendium. Because it is or emergencies only, you only need to le one copy. It should have a table

o contents, the adavit evidence, transcripts, and then the exhibits led at the hearing.In criminal cases, i there are any original papers or exhibits that the Court o Appeal must consider

you must le an Original Papers and Exhibits Request within 1 days o the Notice o Appeal.

Certifcate o Perection

Te appellant must le two copies o a certicate o perection ater ling all o its materials. Once you

have led this certicate, you have perected the appeal, which means that the court can set a date to

hear the appeal.

You must le the certicate o perection within 9 days o ling the transcripts or, i there are no

transcripts, within 6 days o ling the Notice o Appeal. Tere is a ling ee.Te certicate o perection must state that the appeal book, transcripts, and appellants actum

have been served and led. In criminal cases, it must state the estimated total length o time needed or

oral argument. Finally, it must state the name, address, and telephone number o the respondent or o

his or her lawyer. In civil cases, it must also state name, address and telephone number o every party to

the appeal.


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APPENDIX

I you do not perect the appeal on time, the Crown, the other party, or the Registrar can put your

case in ront o a panel o the court to speak about the lack o perection. You may also be required

to attend Status Court i perection is delayed. Tere you must show that you pursued the matter

diligently.

I you cannot, through no ault o your own, perect the appeal on time, you have two options. You

case ask the Crown or other side or written consent to an extension o time or you can bring a motion

asking or an extension o time to perect the appeal.

Constitutional Questions

I you intend to raise a constitutional issue on appeal, it must have been argued in the lower court, ater

either you or the other party provided a Notice o Constitutional Question to the Attorney General o

Canada and the Attorney General o Ontario. Tis notice is required by s. 19 o the Courts o JusticeAct. A sample Notice o Constitutional Question is set out as Form F in the Rules o Civil Procedure. I

you or the other party did not raise the constitutional issue in the lower court through this procedure,

the Court o Appeal may not hear your constitutional challenge on appeal. It must be noted, however,

that there are times when a lower court will have heard allegations oCharter breaches, in a criminal

case, or example, when a Notice o Constitutional Question has not been led. Again, this allegation

must have been heard by the lower court in order to be entertained by the Court o Appeal.


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APPENDIX

D.

Introduction: Why Your Factum is Important

Te actum is the most important document you will le in your appeal. Your success in convincing the

court o your position begins with the actum and rests on it throughout the appeal. Te actum may

leave the judges with an initial impression o what your appeal is about and with a lasting impression ohow it should be decided.

When you write your actum, you should ocus on clarity and readability. You are explaining your

case to judges. It is important to start with the basics and at the beginning o the story.

Below are some hints on eective actum writing, as well as an example o how a actum should be

organized. o make sure that your actum complies with the rules, you should consult a lawyer. We also

recommend that you read an article by Justice John I. Laskin on how to write a persuasive actum. It is

available on the Court o Appeal website at:

http://www.ontariocourts.on.ca/coa/en/ps/speeches/forget.htm

When writing your actum, DO: Read the applicable Rules o Civil Procedure beore you begin writing

Set out your acts and legal arguments in clear, concise language

Stick to the page limits and other technical requirements the Court oce will not accept

actums that do not comply with these rules

Make sure your cover page and back pages are the right colour

File an electronic actum along with your printed material see:

http://www.ontariocourts.on.ca/coa/en/notices/adminadv/ef.htm

Under each ground o appeal explain the specic errors you think the trial judge made

Use a spell check and a grammar check when you are nished writing

When writing your actum, DO NO:

Do not use infammatory, oensive or insulting language

Do not use overly ormal language

Do not use ancy onts or page dividers

Writing your actumor civil appeals
http://www.ontariocourts.on.ca/coa/en/ps/speeches/forget.htmhttp://www.ontariocourts.on.ca/coa/en/notices/adminadv/ef.htmhttp://www.ontariocourts.on.ca/coa/en/notices/adminadv/ef.htmhttp://www.ontariocourts.on.ca/coa/en/ps/speeches/forget.htm


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APPENDIX

Formal requirements

For civil appeals, the Rules o Civil Procedure require that actums be in the prescribed orm and notmore than 3 pages in length. You should reer to Rule 61.11 and Rule 61.1 to nd the requirements.

Te actum begins with a cover page. A sample is set out below. Te top right corner must contain

the Court o Appeal le number. Insert the names o the plainti and deendant and indicate whether

they are the appellant or the respondent on the appeal. Te case name is repeated on the rst page o

the actum (as shown below). All o the paragraphs in the actum must be numbered.

SAMPLE COVER PAGE

Court File No. C#####

COURT OF APPEAL FOR ONTARIO

B E T W E E N:

PLAINTIFF NAME

Plaintiff

(Appellant/Respondent)

- and -

DEFENDANT NAME

Defendant


APPELLANTS/RESPONDENTS FACTUM

Name of the Party filing the factumContact Information of the Party

TO:

Name of opposing lawyer or party

Contact information of opposing lawyer or party


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APPENDIX

SAMPLE PAGE 1 FOR APPELLANTS FACTUM



B E T W E E N:

PLAINTIFF NAME

Plaintiff


- and -

DEFENDANT NAME

Defendant


APPELLANTS FACTUM

PART I (appellant): Statement identifying the appellant, the court appealed from, and the

judgment appealed from.

I you are an appellant, Part I should contain a short statement that identifes the appellant, the court or

tribunal being appealed rom (including the name o the judge), the date o the judgment appealed rom, and

the result o the case at trial (who won or lost, what the damages awarded were, and whether interest and costs

were awarded). Tis section should also contain a short statement on what is being appealed. For example:

1. The Appellant Jill Hill (Jill) is the defendant in an action brought in the Superior

Court of Justice for negligence. At trial, the Honourable Justice M. Goose awarded $30,000

in damages to the plaintiff Jack Hill (Jack). The trial judge also awarded costs of $15,000

and prejudgment interests of $7,000. Ms. Hill now appeals from this ruling.


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APPENDIX

PART II (appellant): Concise overview statement describing the nature of the case and the

issues on appeal.

For an appellant, Part II is similar to Part I o a respondents actum. Part II is a short overview o the case

that clearly sets out the issues that the court must decide. I there are multiple issues, it is helpul to set them

out in a numbered list. Te overview should be brie and airly basic. For example:

2. Jack, the plaintiff, sued Jill for negligence after he was injured while fetching a pail of

water on Jills property. The plaintiff alleges that Jill was negligent in maintaining the area

known as the Hill, and, specifically, the area around the well. The plaintiff alleges that Jill had

a duty to safely maintain her property, and that this duty extended to Jack who was sent up

the hill at her request, and whose injuries were reasonably foreseeable to Jill given the state of

repair of the Hill and of the well.

3. The defendant says that the learned trial judge erred in:

a) Finding that Jill Hill caused the injuries to the plaintiff, Jack Hill; and

b) Finding that Jill Hill had failed to meet the standard of care in maintaining the Hill

and the area around the well.

PART III (appellant): Statement of the facts relevant to the appeal.

Tis part should contain a concise summary o the acts. You are dealing with judges who have not previously

heard your case. It is important to tell the acts in an order that will help the reader understand whathappened.

However, it is also important to remember that acts must be relevant to the case. You may think that the

trial judge made an unair decision at the trial. Tis is not a act. You may think that the other party is an

idiot. Tis is also not a act. Commenting on members o the legal system or the other parties in a case will not

win you any sympathy rom the judges.


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APPENDIX

You should approach this section by reviewing the reasons o the judge rom the lower court. Oten, the

judge will have summarized the relevant acts or made fndings o act.

ry to present the acts in an impartial manner. Dont misstate the acts or leave out acts that might

be damaging to your argument. However, only acts that are relevant to the issues should be included. For

example:

4. On June 4, 2000, Jack visited his sister, Jill. She had asked him to come to help her

fetch some water from the well behind her house. Jill had been ill and was not feeling strong

enough to fetch the water herself.

5. Jack agreed to fetch several pails of water. The well is behind Jills house, at the top

of a small hill. The well is approximately 50 metres uphill from the house. There is a flagstone

path from the rear door of the house to the well. The path is quite overgrown in some areas.

Approximately 30 metres from the house, the path becomes very steep. It remains very steep

for 15 metres, and then evens out again at the top of the hill.

6. Jack and Jill took two buckets and climbed the hill. They had some difficulty navigating

the path because of the overgrown paving stones. Jack told Jill that it was getting dangerous

on the steep parts of the path and that someone could trip over the weeds that had grown

there. He told her that she needed to have someone clean up the path for safety reasons. Jack

told Jill to wait for him at the point when the path became steeper because he was worried

that she shouldnt be climbing the difficult path while she was still ill. Jack took both buckets

and climbed to the top of the hill without incident.


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APPENDIX

7. Jack filled the buckets at the well and balanced them on his shoulders. He then

proceeded down the path. Shortly after he began descending the steepest part of the hill he

twisted his ankle and fell down the hill. Jill clearly saw the area of the path where Jack twisted

his ankle, and noticed that it had no overgrowth. Jack rolled approximately 40 metres down

the hill before coming to a stop against a bush.

8. Jill saw Jack tumble down the hill and raced after him, hoping to help. In her haste, she

tripped on the overgrowth around the path and also fell down. She rolled approximately 15

metres down the hill before being able to stop herself, and was not seriously injured.

9. Following the fall Jack was disoriented and ran into the house. He found a roll of

brown paper and some vinegar in the kitchen. He doused the brown paper with vinegar, and

wrapped it around his head. Jill recovered quickly from her fall and followed Jack into the

kitchen. When she arrived, he had brown paper wrapped several times around his head. She

immediately called the paramedics who took him to the hospital.

10. Jack suffered multiple scrapes and bruises, and a serious head injury. There was

significant blood loss from a large cut in his head. It became apparent that Jack had also

suffered brain damage. As a result, he was unable to complete his university education where

he had been studying to be a water management specialist. He has impaired motor function in

his right arm and leg and requires the help of a daily nurse. His quality of life has diminished

significantly.


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APPENDIX

11. Jack brought an action against Jill for damages stemming from the incident, and for

his medical and nursing costs and loss of future income. He was successful at trial.

12. In her reasons, Goose J. held

PART IV (appellant): statement of each issue raised, immediately followed by a concise

argument with reference to the law

Tis part should contain a statement o each issue you are raising immediately ollowed by your argument on

that issue (a respondent then responds to these same issues in Part III o the respondents actum). You have

already set these issues out under Part II o the appellants actum when you stated how you think the trialjudge erred.

Tis section o a actum is the most dicult. It is where you make legal arguments and reer to the law

and authorities in making these arguments. For example:

13. There are two issues on this appeal:

a) Did the trial judge err in finding that Jill caused the injuries to the plaintiff, Jack?

b) Did the trial judge err in finding that Jill failed to meet the standard of care in

maintaining the Hill and the area around the well?

ISSUE 1: Did the trial judge err in fnding that Jill caused the injuries to the plainti, Jack?

Immediately ater stating the issue, you should give a one-paragraph answer to the question that outlines your

position. For example:

14. The appellant submits that the trial judge erred in finding that Jill caused Jacks

injuries. It was an accidental twist of his ankle, and not her negligent maintenance of the

property, that caused his injuries.


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APPENDIX

Ten continue your argument, making reerences to case law where necessary. For example:

15. The trial judge erred in awarding damages to the plaintiff because the plaintiff could

not show that the negligence of the defendant caused the plaintiffs injuries. In order to justify

an award for damages against Jill, Jack must show that her negligence is responsible for his

injury.

Cite relevant authorities

16. The most common expression of causation is the but for test. In this case, it cannot

be said that but for Jills failure to maintain the path by keeping it free from overgrowth, Jack

would not have been injured.

Cite relevant authorities

17. Jacks injuries were caused because he twisted his ankle. He did this in an area of the

path that was clear of overgrowth. He did not stumble because of the state of repair of the

path, but simply because of an accidental twist of his ankle. Regardless of the state of repair

of the path, Jack would have twisted his ankle in the exact same way.

18. The trial judge erred in awarding damages to Jack absent any causation on the part

of Jill. Jacks injuries, though unfortunate, cannot be attributed to Jills maintenance of the

pathway.

Part V (appellants): Order requested

For both the appellants and respondents Part V should contain a statement o the order being requested

including costs. For example:


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APPENDIX

SAMPLE PAGE 1 FOR RESPONDENTS FACTUM



B E T W E E N:

PLAINTIFF NAME

Plaintiff


- and -

DEFENDANT NAME

Defendant


RESPONDENTS FACTUM

PART I (respondent): Concise overview statement

Part I should contain a short overview o the case and the issues. Te appellant will appeal a specifc part o

the judgment or a specifc reason. You must respond to the appellants argument. For example:

1. The appellant appeals the judgment of the Honourable Justice M. Goose dated

January 14, 2004, in which she awarded $37,000 in damages and $15,000 in costs to Jack.

The appellant argues that the trial judge erred in finding that she was negligent in maintaining

her property and that this negligence caused the injuries sustained by the plaintiff.


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APPENDIX

2. This appeal should be dismissed. The trial judge correctly applied the law in finding that

Jill owed a duty of care to Jack, and that she fell below the standard of care in maintaining

the Hill.

PART II respondent: Statement o the acts agreed upon, acts in dispute, and additional acts asrequired. Tis part should contain a statement o the acts rom the appellants actum that the respondent

agrees with and disagrees with. For example:

3. The respondent agrees with the facts outlined in paragraphs 3 to 7 of the appellants

factum. The respondent disagrees with the facts outlined in paragraphs 9 and 10 of the

appellants factum.

Te respondent may also have to include relevant acts that the appellant did not include.

PART III (respondent): Statement of the position of the respondent with respect to each issue

raised by the appellant, immediately followed by a concise argument with reference to the law

Tis part is a response to the issues raised by the appellant. Te respondent generally argues in avour o the

trial judges ruling. Te easiest way to do this is to match the appellants actum point by point.

PART IV (respondent): statement of any additional issues raised by the respondent, the

statement of each issue to be followed by a concise argument with reference to the law

Tis part should contain any new issues being raised by the respondent. Te ormat would be the same as Part

IV or the appellant. Set out any issue clearly ollowed by a concise argument o your position.

Part V (respondent): Order requested

Part V should contain a statement o the order being requested including costs. For example:

15. The respondent respectfully requests the following orders:


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APPENDIX

a) An order dismissing this appeal;

b) Costs of this appeal and the trial below; and

c) Such further relief as counsel may advise and this Honourable Court deems just.

You must then sign below:

________________________________

Your Name

Address

Phone Number

Respondent

On the next page, you must include a certifcate certiying the ollowing: (a) whether an order under rule

61.09(2) is required or has been obtained, and (b) the amount o time required to present oral arguments. For

example:

CERTIFICATE

16. I hereby certify that an order under subrule 61.09(2) (original record and exhibits) is

not required.

17. Counsel for the Respondent will require 30 minutes.

Dated at __________ Ontario this ___ day of ______ 2006.

________________________________

Your Name

You must also include 2 schedules:

Schedule A containing a list o the authorities reerred to ScheduleBcontainingalistofallrelevantprovisionsofstatutes,regulationsandby-laws,followedby

the text o those provisions


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APPENDIX

E.

A guide toinmate appealsONCE A MONH the Court o Appeal hears appeals by inmates convicted o criminal oences.

Every two months, three judges o the Court travel to Kingston to hear appeals submitted by inmates

in the Kingston area. Inmate appeals ollow a special procedure that does not have many o the

requirements and rules that govern other appeals.

Getting Help with your Appeal

Although there is an inormal appeal procedure available or inmates, they are encouraged to seek

assistance in preparing and arguing their appeals.

Legal Aid Ontario can assist with paying or legal representation i your appeal meets their criteria.

Legal Aid Ontario can be contacted at 1-8-668-858 and (16) 979-8669 (ax).Iyou do notqualiy or legal aid, duty counsel lawyers will be present in court on the day your appeal is argued.

Tese lawyers can help you to argue your appeal.

Te Queens University Faculty o Law in Kingston has a Correctional Law Program that can help

inmates with writing their appeal materials. Te Program can be contacted at(613) 533-655 and(613) 533-6639 (ax).

What Can You Appeal?

Like anyone convicted o a criminal oence, inmates can appeal rom their convictions, their sentences,

or both. Reer to the earlier sections in this handbook or a discussion o how to identiy what can be

appealed.

When Must You Appeal By?

When the appeal is rom the conviction, the sentence or both, the notice o appeal must be served

within 3 days ater sentencing. You can also request an extension o time by describing why an

extension is necessary in the space provided on the Form A Notice o Appeal.


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APPENDIX

How Do You Appeal?

An inmate wanting to appeal to the Court o Appeal should ask prison ocials or a orm o Notice oAppeal in Form A. Form A requires basic inormation including thename o the judge who gave thejudgment being appealed, the oence(s) the inmate was convicted o, the date o conviction, the date

o sentence, the sentence imposed, and the name and address o the institution where the inmate is in

custody. Prison ocials will submit this orm to the Court Registrar.

On the orm, you must describe whether you are appealing rom sentence, conv