Motions in Appellate Court
 61.16 (1) Rule 37, except rules 37.02 to 37.04 (jurisdiction to hear motions, place of hearing, to whom to be made) and rule 37.17 (motion before commencement of proceeding), applies to motions in an appellate court, with necessary modifications.  O. Reg. 263/03, s. 6 (1). (1.1) Despite subrule (1), rule 37.10.1 (confirmation of motion) does not apply in the case of a motion in the Court of Appeal. O. Reg. 82/17, s. 12 (1). Motion to Receive Further Evidence (2) A motion under clause 134 (4) (b) of the Courts of Justice Act (motion to receive further evidence) shall be made to the panel hearing the appeal.  R.R.O. 1990, Reg. 194, r. 61.16 (2); O. Reg. 82/17, s. 18. Motions Required to be Heard by One Judge (2.1) A motion required by subsection 7 (2) or 21 (3) of the Courts of Justice Act to be heard and determined by one judge may be heard and determined by a panel hearing an appeal or another motion in the proceeding properly made to the panel.  O. Reg. 770/92, s. 15; O. Reg. 82/17, s. 19. Motions Required to be Heard by Panel (2.2) A motion in the Court of Appeal for an order that finally determines an appeal, other than an order dismissing the appeal on consent, shall be heard and determined by a panel consisting of not fewer than three judges sitting together, and always of an uneven number of judges.  O. Reg. 570/98, s. 14; O. Reg. 82/17, s. 16. Motion to be Heard by More Than One Judge (3) Where a motion in an appellate court is to be heard by more than one judge, the notice of motion shall state that the motion will be heard on a date to be fixed by the Registrar.  R.R.O. 1990, Reg. 194, r. 61.16 (3). (3.1) Revoked:  O. Reg. 263/03, s. 6 (2). Certificate of Estimated Time for Argument (3.2) The notice of motion shall contain a certificate stating how much time (expressed in hours or fractions of an hour) the lawyer estimates will be required for his or her oral argument, not including reply.  O. Reg. 333/96, s. 3 (2); O. Reg. 575/07, s. 4. Motion Record and Factum (4) On a motion referred to in subrule (3), (a) the moving party, (i) shall serve a motion record that contains the documents referred to in subrule 37.10 (2) and a factum consisting of a concise argument stating the facts and law relied on by the moving party, and (ii) shall file three copies of the moving party’s motion record and factum, with proof of service, within 30 days after filing the notice of motion; (b) the responding party, (i) may, if of the opinion that the moving party’s motion record is incomplete, serve a motion record that contains the documents referred to in subrule 37.10 (3), (ii) shall serve a factum consisting of a concise argument stating the facts and law relied on by the responding party, and (iii) shall file three copies of the responding party’s motion record and factum, with proof of service, within 25 days after service of the moving party’s motion record and factum; and (c) a party who intends to refer to a transcript of evidence at the hearing shall ensure that it is included in the motion record.  O. Reg. 263/03, s. 6 (3). Certificate of Estimated Time for Argument with Factum (4.1) If a party serves and files a factum on a motion in the Divisional Court, the factum shall contain a certificate stating how much time (expressed in hours or fractions of an hour) the party’s lawyer estimates will be required for his or her oral argument, not including reply, unless the motion is to be heard in writing. O. Reg. 82/17, s. 12 (2). Review of Registrar’s Order (5) A person affected by an order or decision of the Registrar may make a motion to a judge of the appellate court to set it aside or vary it by a notice of motion that is served forthwith after the order or decision comes to the person’s attention and names 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. 61.16 (5). Review of Single Judge’s Order (6) A person who moves to set aside or vary the order of a judge of an appellate court under subsection 7 (5) or 21 (5) of the Courts of Justice Act
shall do so by a notice of motion that is served and filed, with proof of service, within four days after the order is made and states that the motion will be heard on a date to be fixed by the Registrar.  R.R.O. 1990, Reg. 194, r. 61.16 (6); O. Reg. 82/17, s. 12 (3). No Review of Panel’s Order (6.1) Subject to rules 37.14 and 59.06, an order or decision of a panel of an appellate court may not be set aside or varied under these rules. O. Reg. 43/14, s. 19; O. Reg. 82/17, s. 17. Registrar to Dismiss for Delay (7) If the moving party has not served and filed the motion record and other documents in accordance with subrule (4), (a) the responding party may make a motion to the Registrar, on 10 days notice to the moving party, to have the motion dismissed for delay; (b) the Registrar may serve notice on the moving party that the motion will be dismissed for delay unless the motion record and other documents are served and filed within 10 days after service of the notice.  O. Reg. 263/03, s. 6 (4). (8) The Registrar shall make an order in Form 61J.1 dismissing the motion for delay, with costs fixed at $750, despite rule 58.13, if the moving party, (a) in the case of a motion under clause (7) (a), does not serve and file the motion record and other documents before the hearing of that motion, or within such longer period as a judge of the appellate court allows; (b) in the case of a notice under clause (7) (b), does not serve and file the motion record and other documents within 10 days after the notice is served, or within such longer period as a judge of the appellate court allows.  O. Reg. 263/03, s. 6 (4); O. Reg. 394/09, s. 29. RULE 62  APPEALS FROM INTERLOCUTORY ORDERS AND OTHER APPEALS Procedure on Appeal Application of Rule 62.01 (1) Subrules (2) to (10) apply to an appeal that is made to a judge, (a) from an interlocutory order referred to in clause 17 (a) of the Courts of Justice Act; (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); O. Reg. 438/08, s. 49 (1); O. Reg. 711/20, s. 4; O. Reg. 383/21, s. 5. 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 seven days before the hearing date.  R.R.O. 1990, Reg. 194, r. 62.01 (5); O. Reg. 171/98, s. 22 (1); O. Reg. 438/08, s. 49 (2). Place of Hearing (6) The appeal shall be heard at a place determined in accordance with rule 37.03 (where motions to be brought).  R.R.O. 1990, Reg. 194, r. 62.01 (6); O. Reg. 689/20, s. 46. Appeal Record (7) The appellant shall, not later than seven 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, (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); O. Reg. 438/08, s. 49 (3). (8) The respondent shall serve on every other party, at least four days before the hearing, (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); O. Reg. 438/08, s. 49 (4). (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 four days before the hearing.  O. Reg. 171/98, s. 22 (3); O. Reg. 438/08, s. 49 (5). (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).