Application of Rule
(1) Subrules (2) to (10) apply to an appeal that is made to a judge,
(a) from an interlocutory order of a master, under clause 17 (a) of the Courts of Justice Act;
[Note: On January 1, 2010, clause (a) is amended by striking out “master” and substituting “master or case management master”. See: O. Reg. 438/08, ss. 49 (1), 68 (1).]
(b) from a certificate of assessment of costs, under clause 6 (1) (c) or 17 (b) or subsection 90 (4) of that Act; or
(c) under any other statute, unless the statute or a rule provides for another procedure. R.R.O. 1990, Reg. 194, r. 62.01 (1).
Time For Appeal
(2) An appeal shall be commenced by serving a notice of appeal (Form 62A) on all parties whose interests may be affected by the appeal, within seven days after the making of the order or certificate appealed from. R.R.O. 1990, Reg. 194, r. 62.01 (2); O. Reg. 14/04, s. 33 (1).
Hearing Date
(3) The notice of appeal shall name the first available hearing date that is not less than seven days after the date of service of the notice of appeal, and rule 37.05 (hearing date for motions) applies, with necessary modifications. R.R.O. 1990, Reg. 194, r. 62.01 (3).
Notice of Appeal
(4) The notice of appeal (Form 62A) shall state the relief sought and the grounds of appeal, and no grounds other than those stated in the notice may be relied on at the hearing, except with leave of the judge hearing the appeal. R.R.O. 1990, Reg. 194, r. 62.01 (4).
(5) The notice of appeal shall be filed in the court office where the appeal is to be heard, with proof of service, not later than four days before the hearing date. R.R.O. 1990, Reg. 194, r. 62.01 (5); O. Reg. 171/98, s. 22 (1).
[Note: On January 1, 2010, subrule (5) is amended by striking out “four” and substituting “seven”. See: O. Reg. 438/08, ss. 49 (2), 68 (1).]
Place of Hearing
(6) The appeal shall be heard at a place determined in accordance with rule 37.03 (place of hearing of motions). R.R.O. 1990, Reg. 194, r. 62.01 (6).
Appeal Record
(7) The appellant shall, not later than four days before the hearing, serve on every other party and file, with proof of service, in the court office where the appeal is to be heard, an appeal record containing, in consecutively numbered pages arranged in the following order,
[Note: On January 1, 2010, subrule (7) is amended by striking out “four” in the portion before clause (a) and substituting “seven”. See: O. Reg. 438/08, ss. 49 (3), 68 (1).]
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
(b) a copy of the notice of appeal;
(c) a copy of the order or certificate appealed from, as signed and entered, and the reasons, if any, as well as a further typed or printed copy of the reasons if they are handwritten; and
(d) such other material that was before the judge or officer appealed from as is necessary for the hearing of the appeal,
and a factum consisting of a concise argument stating the facts and law relied on by the appellant. R.R.O. 1990, Reg. 194, r. 62.01 (7); O. Reg. 171/98, s. 22 (2); O. Reg. 206/02, s. 17 (1).
(8) The respondent shall serve on every other party, at least two days before the hearing,
[Note: On January 1, 2010, subrule (8) is amended by striking out “two” in the portion before clause (a) and substituting “four”. See: O. Reg. 438/08, ss. 49 (4), 68 (1).]
(a) a factum consisting of a concise argument stating the facts and law relied on by the respondent; and
(b) any further material that was before the judge or officer appealed from and is necessary for the hearing of the appeal. O. Reg. 14/04, s. 33 (2).
(8.1) The respondent’s factum, and any further material, shall be filed with proof of service in the court office where the appeal is to be heard, at least two days before the hearing. O. Reg. 171/98, s. 22 (3).
[Note: On January 1, 2010, subrule (8.1) is amended by striking out “two” and substituting “four”. See: O. Reg. 438/08, ss. 49 (5), 68 (1).]
(9) A judge may dispense with compliance with subrules (7) and (8), in whole or in part, before or at the hearing of the appeal. R.R.O. 1990, Reg. 194, r. 62.01 (9).
Abandoned Appeals
(10) Rule 61.14 applies, with necessary modifications, to the abandonment of an appeal under this rule. R.R.O. 1990, Reg. 194, r. 62.01 (10).
Leave to Appeal from Interlocutory Order of a Judge
(1) Leave to appeal to the Divisional Court under clause 19 (1) (b) of the Act shall be obtained from a judge other than the judge who made the interlocutory order. O. Reg. 171/98, s. 23 (1).
(1.1) If the motion for leave to appeal is properly made in Toronto, the judge shall be a judge of the Divisional Court sitting as a Superior Court of Justice judge. O. Reg. 171/98, s. 23 (1); O. Reg. 292/99, s. 2 (2).
Time for Service of Motion
(2) The notice of motion for leave shall be served within seven days after the making of the order from which leave to appeal is sought or such further time as is allowed by the judge hearing the motion. R.R.O. 1990, Reg. 194, r. 62.02 (2); O. Reg. 14/04, s. 34 (1).
Hearing Date
(3) The notice of motion for leave shall name the first available hearing date that is at least three days after service of the notice of motion. R.R.O. 1990, Reg. 194, r. 62.02 (3).
Grounds on Which Leave May Be Granted
(4) Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. R.R.O. 1990, Reg. 194, r. 62.02 (4).
Motion Record
(5) On a motion for leave, the requirement of rule 37.10 respecting a motion record may be satisfied by,
(a) requisitioning that the motion record used on the motion that gave rise to the order from which leave to appeal is sought be placed before the judge hearing the motion for leave; and
(b) serving and filing a supplementary motion record containing the notice of motion for leave to appeal, a copy of the order from which leave to appeal is sought and a copy of any reasons given for the making of the order as well as a further typed or printed copy of the reasons if they are handwritten. R.R.O. 1990, Reg. 194, r. 62.02 (5).
Factums Required
(6) On a motion for leave, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party. O. Reg. 14/04, s. 34 (2).
(6.1) The moving party’s factum shall be served at least four days before the hearing. O. Reg. 14/04, s. 34 (2).
[Note: On January 1, 2010, subrule (6.1) is amended by striking out “four” and substituting “seven”. See: O. Reg. 438/08, ss. 50 (1), 68 (1).]
(6.2) The responding party’s factum shall be served at least two days before the hearing. O. Reg. 14/04, s. 34 (2).
[Note: On January 1, 2010, subrule (6.2) is amended by striking out “two” and substituting “four”. See: O. Reg. 438/08, ss. 50 (2), 68 (1).]
(6.3) Each party’s factum shall be filed, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing. O. Reg. 14/04, s. 34 (2).
Reasons for Granting Leave
(7) The judge granting leave shall give brief reasons in writing. R.R.O. 1990, Reg. 194, r. 62.02 (7).
Subsequent Procedure Where Leave Granted
(8) Where leave is granted, the notice of appeal required by rule 61.04, together with the appellant’s certificate respecting evidence required by subrule 61.05 (1), shall be delivered within seven days after the granting of leave, and thereafter Rule 61 applies to the appeal. R.R.O. 1990, Reg. 194, r. 62.02 (8).