What Types of Motions Can Be Brought During an Appeal in Ontario?

An appeal is your opportunity to seek a review of a court decision that didn’t go your way. Think of it as a second chance to argue your case—this time at the Court of Appeal. It’s not about rehashing the entire trial but pinpointing an error that affected the outcome.

Allan Rouben is a Toronto appeals lawyer with 35+ years of experience bringing and responding to motions in the Court of Appeal for Ontario and the Divisional Court. This guide explains the motions you can bring during an appeal in Ontario and when to file them.

When you file an appeal, you’re asking a higher court to take a close look at the original judgment of the court. They’ll scrutinize the proceedings to ensure the law was applied correctly and the legal process was fair.

In the appeal process, timing is crucial. You generally have 30 days from the final judgment to serve and file your notice of appeal. Missing this deadline could mean missing your chance to appeal, so mark your calendar and contact a trusted appeals lawyer.

Remember, an appeal isn’t a guarantee of a different outcome, but it’s an essential right within the justice system.

Why Motions Are Your Tactical Tools in an Appeal Process

In the journey through an appeal, you might wonder, “What can I do to steer things in my favour?” That’s where motions in an appeal come into play. They’re like chess moves in the game of law—strategic actions you can take to impact your appeal.

Motions are crucial tools used to communicate with the court. They can sort out legal issues before a full hearing or even alter the course of an appeal.

Each motion requires you to serve and file specific documents, like a notice of motion and sometimes an affidavit to support your claims. But it’s not just about putting in the paperwork. You might also have to present an oral argument explaining why your request should be granted.

Remember, the Court of Appeal operates under strict rules: the Rules of Civil Procedure. These set the stage for how you file your motion, the time limits for filing, and how to serve it to the other parties. Motions brought earlier in a lawsuit work differently; see our guide to motions in civil litigation.

Think of motions as your way of fine-tuning your appeal, addressing specific issues, and guiding the court to see things from your perspective. Used wisely, they can significantly influence the hearing of the appeal and, ultimately, the judgment of the court.

Quick Overview: Steps in the Appellate Procedure

When you’re facing the appellate process, there are specific paths to follow and checkpoints to pass. Here’s an overview of the journey, highlighting where in the appeal process motions come into play:

1. Notice of Appeal: This is your first step. It’s a document you file to tell the court and the other party that you disagree with the decision and you’re seeking a review.
2. Filing the Record and Transcripts: You’ll need to gather all the documents and evidence from the trial court, including transcripts of what was said, to show the Court of Appeal what to examine.
3. Written Arguments: Next, you’ll submit a factum, which lays out your arguments and the legal reasons why the decision should be reconsidered.
4. Service: Throughout the appeal, you must serve documents to the other parties involved, ensuring they’re informed about what you’re filing with the court.
5. Hearing of the Motion: The motions you file can shape the appeal, like asking for more time (a motion to extend time) or presenting new evidence (a motion to adduce fresh evidence). If you bring a motion, there will be a separate mini-hearing before the main event where you can address specific issues with the court.
6. The Appeal Hearing: This is where the panel of judges hears your appeal. You’ll get the chance to present oral arguments and answer the judges’ questions.
7. Judgment: After the hearing, the judges will make a decision. It could be right away or after some time—the wheels of justice turn carefully and at their own speed.
8. Possible Further Motions: Depending on the outcome, there might be more motions, like for a rehearing or to correct a court order.

Specific Types of Appellate Motions

In an appeal, you have several strategic moves available to you—these are called motions. Each type serves a unique purpose, and knowing which one to use can be crucial. That’s where a trusted lawyer can help.

Let’s look at the specific types you might encounter during an appeal:

Motions Heard by Three Judges

In the appeal process, some motions are so crucial that they require the consideration of three judges. These are the big players dealing with whether an appeal should even proceed or if there are new facts to consider. Examples include a motion to quash an appeal and a motion asking a panel to review an order made by a single judge.

Motions for Leave to Appeal from a Decision of Divisional Court

Sometimes, a decision made by a Divisional Court can be contested, but you’ll need to convince the Court of Appeal to hear your case first. This is done through a motion for leave to appeal. Learn more in our guide to filing a motion for leave to appeal.

Other Motions Heard by Three Judges

Not all the actions requiring a trio of judges’ attention fit neatly into one category. There are other motions, just as pivotal, that might not be as common but are equally significant.

Motions Heard by a Single Judge

Then there are the motions that don’t need quite the same level of judicial firepower and are handled by a single judge. These often revolve around the nuts and bolts of managing your appeal. Common examples include motions to extend the time to serve a notice of appeal or perfect an appeal, motions for a stay pending appeal, and motions for security for costs.

Must-Know Types of General Appellate Motions

Navigating this legal process means understanding the different types of motions in an appeal that can come into play. Let’s break down a few that might be particularly important.

Motion for Summary Disposition

A Motion for Summary Disposition is all about streamlining. If your case is clear-cut, and there’s no need for a lengthy court process, this motion can fast-track a decision. Typically, you’d file this when you consider that the appeal is frivolous and you’re confident there’s no dispute over the key facts that the court needs to decide.

Motion to Introduce Fresh Evidence 

What if new evidence surfaces or there’s a legal point that wasn’t considered before? A Motion to Introduce Fresh Evidence is your way of saying, “We need to review this; something was missed.” It’s not a do-over but a chance to ensure that all relevant information and legal arguments have been heard before a final decision is made. This motion is heard by three judges at the commencement of the appeal hearing. 

Motion for Stay of Enforcement

A Motion for Stay of Enforcement is like hitting the pause button. If you’re appealing but the judgment from your case can be enforced, this motion asks to hold off on that enforcement until the appeal is resolved. Why might you need it? Say a court orders you to perform an action; this motion can give you breathing space, stopping those orders from taking effect while your appeal is ongoing. Orders for the payment of money are automatically stayed pending the disposition of the appeal. Conversely, a motion to lift the automatic stay of an order for the payment of money can be brought if there is reason to believe the appeal does not have a strong chance of success or there is financial need for payment of part of the monies pending the hearing of the appeal. 

Motion for Security for Costs of an Appeal

A Motion for Security for Costs of an appeal can be brought where there is good reason to believe the appeal is frivolous and vexatious, and the appellant has insufficient assets in the Province to pay an order for costs of the appeal. A judge of the Court of Appeal will consider whether it is just in all the circumstances for an order for security for costs to be made in advance of the hearing. 

Tactical Timing: When to File These Motions

In general, filing motions within the appeal process requires adherence to strict deadlines. In most cases, the sooner you file your motion, the better. For the key dates in an Ontario appeal, see our guide to appeal deadlines in Ontario. 

The Rules of Civil Procedure often require motions to be served and filed within a set number of days before a hearing. For instance, in some cases, you must serve documents to bring a motion at least six business days before the motion date and file them at least four business days before.

Not sure which motion fits your appeal, or whether a deadline has already passed? Speak with Toronto appeals lawyer Allan Rouben to review your options before time runs out.

Discover Your Next Steps in the Appeals Process with Allan Rouben

Have you faced a setback in the courtroom? Thinking of appealing your case? You’re not alone. Taking the next step can seem daunting, but with the right guidance, you can navigate the appeals process with confidence.

Don’t let uncertainty dictate your next move. Contact Allan Rouben for a consultation, and partner with a seasoned lawyer.

Frequently Asked Questions About Motions in an Appeal