In the appeal proceeding (after leave has been granted, if required), the party who started the appeal is called the “appellant”. Generally, the other party or parties are called “respondents”.

What is perfecting an appeal and why does it matter

Perfecting an appeal means completing the steps that let the court know you are ready for the appeal to be heard. Perfecting the appeal is the responsibility of the appellant.

An appeal is perfected when all the documents necessary for the hearing of the appeal have been served and filed with the court with proof of service within the time periods set out in the Rules.

The documents the appellant must serve and file in order to perfect the appeal are described below.

Once the documents have been served and filed, the appellant files a Certificate of Perfection to show that the appeal is now perfected and ready to be heard. There is a fee payable when you file a Certificate of Perfection. Once the appellant files the Certificate of Perfection, the Divisional Court can list the appeal for hearing.

After perfection, no additional material can be filed by an appellant except a Book of Authorities, unless a judge orders otherwise.

Documents for perfecting an appeal

The documents in this section are filed by the appellant. Each document must be prepared according to the format set out in the Rules. For precise guidelines, refer to Rules 4 and 61.09 to 61.12.

Appeal Book and Compendium

The Appeal Book and Compendium is a bound volume(s) that contains a collection of the documents relating to your appeal. If you are filing a hard copy, it must be bound front and back in buff coloured covers. If you file your Appeal Book and Compendium in hard copy with the court and your appeal will be heard by a panel of three judges, you will need to file three copies.

The pages of the Appeal Book and Compendium must be consecutively numbered, with numbered tabs arranged in the following order:

  1. Table of contents with a description of each document that says what it is and its date.
  2. Copy of the Notice of Appeal and of any Notice of Cross-Appeal or Supplementary Notice of Appeal or Cross-Appeal.
  3. Copy of the order or decision appealed from, as signed and entered.
  4. Copy of the reasons of the court or tribunal appealed from, with a further typed or printed copy if the reasons are handwritten.
  5. If an earlier order or decision was the subject of the hearing before the court or tribunal appealed from, a copy of the order or decision, as signed and entered, and a copy of the reasons for it, with a further typed or printed copy if the reasons are handwritten.
  6. Copy of the document that initiated the proceeding being appealed or that defines the issues in it (examples include the statement of claim, notice of application, statement of defence, and others).
  7. Copy of any excerpts from a transcript of evidence that are referred to in the Appellant's Factum (see below).
  8. Copy of any exhibits that are referred to in the Appellant's Factum (see below).
  9. Copy of any other documents relevant to the hearing of the appeal that are referred to in the Appellant's Factum.
  10. Copy of the Appellant's Certificate Respecting Evidence (Form 61C) and the Respondent’s Certificate Respecting Evidence (Form 61D), if any. Alternatively, if the parties agreed about the evidence, file a copy of the agreement.
  11. Copy of any order made by the court about the conduct of the appeal.
  12. Signed Certificate of Completeness of Appeal Book and Compendium (Form 61H) stating that the contents of the Appeal Book and Compendium are complete and legible.

Exhibit Book

The Exhibit Book is a bound volume(s) containing the exhibits from the original hearing that are necessary for the Divisional Court to consider at the appeal. Remember, you cannot introduce new evidence without the court’s permission. The Exhibit Book must be bound front and back in buff covers. You and the respondent can agree about exhibits that don’t need to be provided to the Divisional Court. This is called an agreement to omit them.

The pages of the exhibit book must be consecutively numbered, with numbered tabs arranged in the following order:

  1. Table of contents with a description of each exhibit being included that says what it is, date and the exhibit number or letter that it was given during the proceeding being appealed.
  2. Any affidavit evidence, including exhibits, that the parties have not agreed to omit.
  3. Transcripts of evidence used on a motion or application that the parties have not agreed to omit.
  4. Copy of each exhibit filed at a hearing or marked on an examination that the parties have not agreed to omit, arranged in order by date (or, if there are documents with common characteristics, grouped in order by date) and not by exhibit number.

Appellant’s Factum

The Appellant’s Factum is a bound document containing a short summary of the facts, the law and the arguments you are making in support of your appeal. There are limits on how long the Appellant’s Factum can be, as described below. When you file your Appellant’s Factum with the court, you will need to provide an electronic version even if you are also filing a hard copy. If your appeal is before a panel of three judges and you are filing in hard copy, you will need to provide three copies.

The Appellant's Factum must be bound front and back in white covers if you are providing it in hard copy. The Appellant’s Factum must be signed at the end. The Appellant's Factum must consist of the following parts (note that for Parts I through V, you must number each paragraph):

  1. Part I, containing a statement identifying the appellant and the court or tribunal appealed from and stating the result in that court or tribunal.
  2. Part II, containing a short overview statement describing what the case is about and the issues.
  3. Part III, containing a short summary of the facts that are relevant to the issues on the appeal. Include references to parts of the transcripts of evidence and the exhibits as necessary.
  4. Part IV, containing a statement of each issue raised in the appeal, immediately followed by a short argument. In the argument, include references to the law and legal authorities relating to that issue (for example, other court decisions that you are including in your Book of Authorities).
  5. Part V, containing a statement of the order you are asking the Divisional Court to make, including any order for costs.
  6. A certificate containing the following items:
    1. A statement confirming that an order under subrule 61.09(2) (original record and exhibits) either has been obtained or is not required.
    2. How much time (in hours or parts of an hour) you think you will need for your oral argument. Do not include the time needed for your reply to the respondent’s argument.
    3. A statement confirming Parts I to V of the Appellant’s Factum are not more than 9,200 words and also not more than 40 pages. This word limit applies to all words used in Parts I to V, including words used in citations, footnotes, headings or charts, diagrams or other visual aids. 
      Note: If you received permission from a judge to file a factum that is longer than these limits, you must attach a copy of the judge’s order giving you permission. You must also state in your certificate that you have respected the limits in the order (instead of the limit in the rules).
    4. The number of words contained in Parts I to V.
    5. A statement confirming that you (or the person signing the certificate if that isn’t you) are satisfied that every authority (legal source) that you refer to in your factum is authentic. 
      Note: You can normally assume that an authority (legal source) is authentic if it is published on a government website, by a government printer, on the Canadian Legal Information Institute website (CanLII), on a court’s website or by a commercial publisher of court decisions. If you take an authority from another type of publisher or website, you need to check to make sure that it is authentic.
  1. Schedule A, containing a list of the authorities (legal sources, such as other court decisions, etc.) referred to.
  2. Schedule B, containing the text of all relevant portions of statutes, regulations and by-laws.

If a respondent has delivered a Notice of Cross-Appeal, the appellant in the main appeal is considered a “respondent to the cross-appeal” or “cross-respondent”. The appellant must deliver a factum as a cross-respondent to the cross-appeal within 10 days after service of the Respondent’s Factum.

Transcripts

Information about transcripts is provided in “Part three: Transcripts”. Transcripts must be filed in electronic version, even if other materials are filed in hard copy.

Book of Authorities

It is of great assistance to the Divisional Court for the parties to file bound volumes containing copies of the cases or other legal materials (such as academic legal articles) they intend to refer to in their arguments for the appeal. These legal materials are known as “authorities."

The parties should work together to make one Book of Authorities if possible. If the parties can’t agree on one combined version, then they can file separate Books of Authorities. If the Books of Authorities are filled in hard copy, the Appellant's Book of Authorities must be bound front and back in white covers. The Respondent’s Book of Authorities must be bound front and back in green covers.

The Book of Authorities should include a tab for each source (case, legal article, etc..) and should include an index of the cases and indicate the tab where the case is reproduced. The tabs can be organized by numbers (1, 2, 3, etc.) or by letters (A, B, C, etc.). You (or the other party, if you are using a joint Book of Authorities) should highlight, underline or put a line in the margin to show the parts of the cases that are relevant to the arguments.

The Book of Authorities should include only the authorities that you (or the other party if it is a joint book) have referred to in the Factum(s). The Book of Authorities should be filed, if possible, with the Appellant’s Factum. If this is not possible, then it should be filed no later than the Monday of the week before the hearing of the appeal.

If the appeal is before a panel of three judges and you are filing the Book of Authorities in hard copy, you should file three copies of your Book of Authorities.

The Divisional Court maintains a list of Often Cited Cases in Divisional Court. If you are referring to a case in this list, you do not need to include the full case in your Book of Authorities. However, you should still include the relevant extracts in your Factum or your Book of Authorities. The list of Often Cited Cases in Divisional Court is provided for convenience. It should not be treated as an indication of the most important cases on any particular topic.

Certificate of Perfection

The Certificate of Perfection must:

  • state that the Appeal Book and Compendium, Exhibit Book, transcripts, if any, and Appellant's Factum have been filed with the Divisional Court
  • list every party to the appeal as well as any intervener and any person entitled by statute to be heard on the appeal, along with:
    • the name, address and telephone number of that party's or person's lawyer, or
    • if the party or person is not represented by a lawyer, the party or person's own name, address for service and telephone number.

All documents must be served on the other parties before they are filed. Proof of service is required at the time of filing. See “Serving documents in Divisional Court appeals” for more information.

Timelines for perfecting an appeal

When there is no transcript of evidence required, the appellant must perfect the appeal within 30 days after filing the Notice of Appeal. If transcripts are required, the appellant must perfect the appeal within 60 days of receiving notice from the person making the transcript that the transcript has been completed.

If the appellant misses the deadline for perfecting under the Rules, the respondent can bring a motion to ask that the appeal be dismissed for delay. The respondent must serve written notice to the appellant at least 10 days before they take this step.

In addition, if the appellant does not perfect the appeal within one year after filing the Notice of Appeal to the Divisional Court (Form 61A.1), the Registrar may serve a written notice to the appellant to tell them that the appeal will be dismissed for delay if it is not perfected within 10 days.

There are also dismissal timelines for cross-appeals. See Rule 61.13(4) and Rule 61.13(5) for details.

If you receive notice from the Registrar or the respondent that your appeal is about to be dismissed for delay and you believe this is an error, you should contact the Divisional Court office where you filed your appeal materials as soon as possible. Learn more about dismissal for delay.

If you cannot perfect your appeal on time, you can either:

  • obtain the respondent’s consent in writing for an extension of time to perfect, or
  • bring a motion before a single judge of the Divisional Court asking for an extension of time to perfect the appeal

Modified timelines for perfecting appeals of orders made under the Child, Youth and Family Services Act, 2017

For an appeal of an order made under the Child, Youth and Family Services Act, 2017, there is a modified timeline for perfecting the appeal, as set out in Rule 38 of the Family Law Rules. When no transcript of evidence is required, the appellant must perfect the appeal within 14 days after filing the Notice of Appeal to the Divisional Court (Form 61A.1), instead of 30 days. Where a transcript of evidence is required, the appellant must perfect within 30 days after they are notified that the transcript is complete, instead of 60 days. The registrar may send a notice to the appellant that their appeal under the Child, Youth and Family Services Act, 2017 will be dismissed for delay in 10 days, if the appellant has not perfected the appeal within 6 months after filing the Notice of Appeal to the Divisional Court, instead of one year.