Maclaren Corlett (Lawyers Est. 1873)

Following Part 1 of this series, which outlined the basics about appeals from Ontario court cases, I will now delve deeper into the various courts, avenues of appeals and options for appellants.

In this post, I start the discussion about rules and procedures of appealing a decision from the Ontario Small Claims Court (“Small Claim”).

First and foremost, appeals from Small Claims are heard by the Divisional Court and your claim must be for $2,500.00 or more in order to be permitted an appeal.  If you meet these criteria, you will need to serve the Respondent(s) (Plaintiff(s) from the Small Claims trial) a Notice of Appeal (Form 61A) and Appellant’s Certificate Respecting Evidence (Form 61C) within 30 days of the date of the original Small Claims order.  When appealing from Small Claims, you do not need leave to appeal (i.e. permission from the court).

NOTE: You must be very careful when determining your 30-day deadline.  These 30 days begin on the date that the order was signed by the Small Claims judge, not the date that you may have received the order (although it may be the same day).  Be sure to double check the date written on the order itself, and begin your count from there.

You will then have another 10 days to file the Notice of Appeal and Appellant’s Certificate Respecting Evidence with the Divisional Court; however I would recommend filing as soon as you’ve completed service, to ensure that this second deadline doesn’t get missed.

Notice of Appeal – this document will describe the relief you are seeking (for example, dismissal of the original plaintiff’s action and costs awarded to you throughout); the grounds of your appeal (this should be a list of the errors in fact or law you believe the Small Claims judge made, justifying a review by the appellate court); and the basis for the Divisional Court’s jurisdiction (list the legislation that allows you to appeal to the Divisional Court from Small Claims, note that leave to appeal is not required, and that the order being appealed is a final order).

Appellant’s Certificate Respecting Evidence – this simply lists the portions of evidence from the original hearing that you, as the appellant, consider necessary for the appeal.  Note that the appellant judge doesn’t want to review the trial evidence in full unless absolutely necessary, so be thorough in your review and choose only the evidence that is required to support your arguments (i.e. grounds for appeal, as described in the Notice of Appeal)

NOTE: If you believe that the oral testimony of any of the witnesses from the original trial will be helpful to your appeal, you will need to order transcripts.  To do this, you need to get a Certificate of Ordering a Transcript for Appeal from the Small Claims Court that heard the original hearing and file a copy with the Divisional Court within 30 days of the date you filed your Notice of Appeal.

The next step is called perfecting your appeal.  If you are not ordering transcripts, this must be done within 30 days of the date you filed your Notice of Appeal.  If you did order transcripts, this must be done within 60 days of receiving notice that the evidence requested has been transcribed.

In order to perfect your appeal, you will need to create an appeal book and compendium (see Rule 61.10), an exhibit book (see Rule 61.10.1), a printed copy AND electronic copy of the transcripts (if applicable), an appellant’s factum, a book of authorities and a certificate of perfection.  These make up the body of your argument and supporting evidence, and are the basis upon which the respondent will reply to your appeal and the Divisional Court judge(s) will evaluate your claim.

Next time, I will go into more detail about the documents required to perfect an appeal, as well as complete a brief review of what do you if you are the Respondent in an appeal from Small Claims to Divisional Court.

In the meantime, some helpful references to note include Rule 61 of the Rules of Civil Procedure, the Ministry of the Attorney General’s “Guide to Appeals in Divisional Court” and, as noted in Part 1, the Court of Appeal for Ontario’s informative website (http://www.ontariocourts.ca/coa/en/).  These resources should all be used in combination with the advice of a litigation lawyer, if you are considering an appeal from Small Claims.