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”.

Starting an appeal

Start by serving  and filing one copy of a Notice of Appeal to the Divisional Court (Form 61A.1) and one copy of an Appellant's Certificate Respecting Evidence (Form 61C). The documents must be served on the respondent(s). When you file them with the court, you will also need to file proof of service. There is a fee for filing the Notice of Appeal, payable at the time it is filed.

Notice of Appeal

The Notice of Appeal contains the:

  • relief sought,
  • grounds of the appeal
  • basis for the Divisional Court’s jurisdiction

For a brief description of the meaning of these terms, refer to the “Glossary of important terms”.

It is important to think carefully about the relief sought and the grounds of the appeal. You will not be able to raise any new grounds of appeal in your arguments at the hearing or ask the court for different relief, except with leave (permission) of the court. If, after you serve and file your Notice of Appeal, you realize that you want to make a change, you can amend it by serving and filing a Supplementary Notice of Appeal or Cross-Appeal (Form 61F) before the appeal has been perfected. If you want to make a change after the appeal has been perfected, you will need to seek leave of the court. 

Appellant’s Certificate Respecting Evidence

An Appellant’s Certificate Respecting Evidence is a certificate that sets out the specific portions of the evidence from the original hearing that the appellant thinks are necessary for the appeal. See Rule 61.05 of the Rules for more information.

Serving documents

Service of documents means the formal process to provide documents to the other parties. This section contains a short description. More details are provided at “Serving documents in Divisional Court appeals”.

You must serve all other parties affected by the decision under appeal (now referred to as “respondents”). There are limited situations when you do not need to serve all respondents. See Rule 61.04 for details. If you are appealing a decision of a tribunal or board, you must also serve the relevant tribunal or board within the same timelines.

You must serve the respondents within 30 days after the date of the order or decision being appealed, unless a statute or the rules provide otherwise. If you are serving on the 30th day, you must do so before 4:00 p.m. If you brought a motion for leave to appeal, refer to “Part one: Leave to appeal” for information about the timelines that apply to your appeal.

If you do not serve within the 30-day limit, you are out of time for service as provided for in the Rules and court office staff cannot accept your appeal. If you need more time to serve your notice of appeal, you may obtain the written consent of the respondent(s) for late service. If the respondents do not consent, you can bring a motion before a single judge of the Divisional Court to ask for an extension of time.

Filing documents

See “Tips on completing forms in the Divisional Court”  for important information about how to fill out your forms and how to file your documents with the court.

You must file your Notice of Appeal at the court within 10 days after service on all named respondents. You can file your Appellant’s Certificate at the same time. If you brought a motion for leave to appeal, refer to “Part one: Leave to appeal” for information about the timelines that apply to your appeal.

You should be aware that if, after serving a Notice of Appeal or Notice of Cross-Appeal, you do not file it with the court within 10 days of service, you will be considered to have abandoned the appeal. The respondent(s) are entitled to costs of an abandoned appeal, unless the court orders otherwise.

If you do not file within the 10-day limit, you may obtain written consent for late filing from the respondent(s). If the respondents do not consent, you can bring a motion for an extension of time before a single judge of the Divisional Court.

Generally, Divisional Court appeals are handled in the region where the hearing or other process that led to the decision appealed from took place. This may not be the case if the parties agree otherwise or the Chief Justice of the Superior Court of Justice orders otherwise. See section 20(1) of the Courts of Justice Act. For more information on where to file your appeal documents, refer to “Serving documents in Divisional Court appeals”.

You will be given a Divisional Court file number which must appear on all further documents to be served and/or filed. Have this file number handy when contacting the court about your file.

If the final order you intend to appeal was made by a court or tribunal in a location other than listed please contact the Superior Court of Justice office nearest you to find out where you should file your documents.  Court addresses and phone numbers can be viewed online.

Order of the lower court or tribunal when starting an appeal

When you start an appeal, the order of the lower court remains in effect, unless the order is “stayed”. A “stay” is a temporary halt or stopping of the effect of an order or tribunal.

The order you are appealing can be stayed in two situations:

  • There is a law that applies in your situation that automatically creates a stay as soon as you file your Notice of Appeal to the Divisional Court (Form 61A.1) with the court (after having served it on the other parties)
  • a judge grants a “stay”

Generally, unless there is a stay, you must comply with the terms of the order.

Some examples of automatic stays created by law include:

Even where there is an automatic stay, you must inform both the court or tribunal that made the order being appealed and the enforcement office in writing of the existence of the stay. It may be necessary to file a Certificate of Stay (Form 63A or 63B).

See Rule 63 of the Rules for more information about stays and how to request one.

Discontinuing or abandoning an appeal

An appellant may decide they do not want to continue the appeal process. The appellant may abandon the appeal at any time by serving and filing a Notice of Abandonment of Appeal or Cross-Appeal (Form 61K). The notice must be served and filed with proof of service.

In addition, the appeal can be considered automatically abandoned if certain deadlines aren’t met. If, after serving a Notice of Appeal to the Divisional Court (Form 61.A.1), the appellant does not file it with the court within 10 days of service, they will be considered to have abandoned the appeal. The respondent(s) is entitled to costs of an abandoned appeal, unless the court orders otherwise. The same rule about abandonment applies to cross-appeals .