Motion for Leave to Appeal to Divisional Court
 61.03 (1) Where an appeal to the Divisional Court requires the leave of that court, the notice of motion for leave shall, (a) state that the motion will be heard on a date to be fixed by the Registrar; (b) be served within 15 days after the making of the order or decision from which leave to appeal is sought, unless a statute provides otherwise; and (c) be filed with proof of service in the office of the Registrar, within five days after service.  R.R.O. 1990, Reg. 194, r. 61.03 (1); O. Reg. 61/96, s. 5 (2); O. Reg. 14/04, s. 29 (1). Motion Record, Factum and Transcripts (2) On a motion for leave to appeal to the Divisional Court, the moving party shall serve, (a) a motion record containing, in consecutively numbered pages arranged in the following order, (i) 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, (ii) a copy of the notice of motion, (iii) a copy of the order or decision from which leave to appeal is sought, as signed and entered, (iv) a copy of the reasons of the court or tribunal from which leave to appeal is sought with a further typed or printed copy if the reasons are handwritten, (iv.1) a copy of any order or decision that was the subject of the hearing before the court or tribunal from which leave to appeal is sought, (iv.2) a copy of any reasons for the order or decision referred to in subclause (iv.1), with a further typed or printed copy if the reasons are handwritten, (v) a copy of all affidavits and other material used before the court or tribunal from which leave to appeal is sought, (vi) a list of all relevant transcripts of evidence in chronological order, but not necessarily the transcripts themselves, and (vii) a copy of any other material in the court file that is necessary for the hearing of the motion; (b) a factum consisting of a concise argument stating the facts and law relied on by the moving party and the certificate referred to in subrule 61.16 (4.1); and (c) relevant transcripts of evidence, if they are not included in the motion record, and shall file three copies of the motion record, factum and transcripts, if any, with proof of service, within thirty days after the filing of the notice of motion for leave to appeal.  R.R.O. 1990, Reg. 194, r. 61.03 (2); O. Reg. 61/96, s. 5 (3); O. Reg. 206/02, s. 13 (1); O. Reg. 82/17, s. 6 (1). (2.1) Despite subrule (2), only one copy of a motion record, factum or transcript needs to be filed if the filing is done electronically. O. Reg. 689/20, s. 43. (3) On a motion for leave to appeal to the Divisional Court, the responding party may, where he or she is of the opinion that the moving party’s motion record is incomplete, serve a motion 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; and (b) a copy of any material to be used by the responding party on the motion and not included in the motion record, and may serve a factum consisting of a concise argument stating the facts and law relied on by the responding party and the certificate referred to in subrule 61.16 (4.1), and shall file three copies of the responding party’s motion record and factum, if any, with proof of service, within fifteen days after service of the moving party’s motion record, factum and transcripts, if any.  R.R.O. 1990, Reg. 194, r. 61.03 (3); O. Reg. 61/96, s. 5 (4); O. Reg. 206/02, s. 13 (2); O. Reg. 82/17, s. 6 (2). (3.1) Despite subrule (3), only one copy of a motion record or factum needs to be filed if the filing is done electronically. O. Reg. 689/20, s. 43. Notice and Factum to State Questions on Appeal (4) The moving party’s notice of motion and factum shall, where practicable, set out the specific questions that it is proposed the Divisional Court should answer if leave to appeal is granted.  R.R.O. 1990, Reg. 194, r. 61.03 (4); O. Reg. 61/96, s. 5 (5). Date for Hearing (5) The Registrar shall fix a date for the hearing of the motion which shall not, except with the responding party’s consent, be earlier than fifteen days after the filing of the moving party’s motion record, factum and transcripts, if any.  R.R.O. 1990, Reg. 194, r. 61.03 (5). Time for Delivering Notice of Appeal (6) Where leave is granted, the notice of appeal shall be delivered within seven days after the granting of leave.  R.R.O. 1990, Reg. 194, r. 61.03 (6). Costs Appeal Joined with Appeal as of Right (7) Where a party seeks to join an appeal under clause 133 (b) of the Courts of Justice Act with an appeal as of right, (a) the request for leave to appeal shall be included in the notice of appeal or in a supplementary notice of appeal as part of the relief sought; (b) leave to appeal shall be sought from the panel of the Divisional Court hearing the appeal as of right; and (c) where leave is granted, the panel may then hear the appeal.  O. Reg. 534/95, s. 3; O. Reg. 175/96, s. 1 (1); O. Reg. 14/04, s. 29 (2); O. Reg. 82/17, s. 18, 19. Costs Cross-Appeal Joined with Appeal or Cross-Appeal as of Right (8) Where a party seeks to join a cross-appeal under a statute that requires leave for an appeal with an appeal or cross-appeal as of right, (a) the request for leave to appeal shall be included in the notice of appeal or cross-appeal or in a supplementary notice of appeal or cross-appeal as part of the relief sought; (b) leave to appeal shall be sought from the panel of the Divisional Court hearing the appeal or cross-appeal as of right; and (c) where leave is granted, the panel may then hear the appeal.  O. Reg. 534/95, s. 3; O. Reg. 175/96, s. 1 (2); O. Reg. 206/02, s. 13 (3); O. Reg. 14/04, s. 29 (3); O. Reg. 394/09, s. 24; O. Reg. 82/17, s. 18, 19. Application of Rules (9) Subrules (1) to (6) do not apply where subrules (7) and (8) apply.  O. Reg. 175/96, s. 1 (3). Motion for Leave to Appeal to Court of Appeal Motion in Writing 61.03.1 (1) Where an appeal to the Court of Appeal requires the leave of that court, the motion for leave shall be heard in writing, without the attendance of parties or lawyers.  O. Reg. 333/96, s. 2 (1); O. Reg. 575/07, s. 4. Notice of Motion (2) The notice of motion for leave to appeal shall state that the motion will be heard on a date to be fixed by the Registrar. O. Reg. 82/17, s. 7 (1). (3) The notice of motion, (a) shall be served within 15 days after the making of the order or decision from which leave to appeal is sought, unless a statute provides otherwise; and (b) shall be filed with proof of service in the office of the Registrar within five days after service.  O. Reg. 61/96, s. 6; O. Reg. 14/04, s. 30 (1). Moving Party’s Motion Record, Factum and Transcripts (4) The moving party shall serve a motion record and transcripts of evidence, if any, as provided in subrule 61.03 (2), and a factum consisting of the following elements: 1. Part I, containing a statement identifying the moving party and the court from which it is proposed to appeal, and stating the result in that court. 2. Part II, containing a concise summary of the facts relevant to the issues on the proposed appeal, with such reference to the evidence by page and line as is necessary. 3. Part III, containing the specific questions that it is proposed the court should answer if leave to appeal is granted. 4. Part IV, containing a statement of each issue raised, immediately followed by a concise statement of the law and authorities relating to that issue. 5. Schedule A, containing a list of the authorities referred to. 6. Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws.  O. Reg. 61/96, s. 6; O. Reg. 333/96, s. 2 (2). (5) Parts I to IV shall be arranged in paragraphs numbered consecutively throughout the factum.  O. Reg. 61/96, s. 6. (6) The moving party shall file three printed copies of the motion record, factum and transcripts, if any, and an electronic version of the factum, and may file three copies of a book of authorities, if any, with proof of service, within 30 days after the filing of the notice of motion for leave to appeal.  O. Reg. 61/96, s. 6; O. Reg. 82/17, s. 7 (2). Responding Party’s Motion Record and Factum (7) The responding party may, if of the opinion that the moving party’s motion record is incomplete, serve a motion record as provided in subrule 61.03 (3).  O. Reg. 61/96, s. 6; O. Reg. 333/96, s. 2 (3). (8) The responding party shall serve a factum consisting of the following elements: 1. Part I, containing a statement of the facts in the moving party’s summary of relevant facts that the responding party accepts as correct and those facts with which the responding party disagrees and a concise summary of any additional facts relied on, with such reference to the evidence by page and line as is necessary. 2. Part II, containing the responding party’s position with respect to each issue raised by the moving party, immediately followed by a concise statement of the law and authorities relating to it. 3. Part III, containing a statement of any additional issues raised by the responding party, the statement of each issue to be followed by a concise statement of the law and authorities relating to it. 4. Schedule A, containing a list of the authorities referred to. 5. Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws.  O. Reg. 61/96, s. 6. (9) Parts I to III shall be arranged in paragraphs numbered consecutively throughout the factum.  O. Reg. 61/96, s. 6. (10) The responding party shall file three printed copies of the factum, and of the motion record, if any, and an electronic version of the factum, with proof of service, within 25 days after service of the moving party’s motion record and other documents.  O. Reg. 61/96, s. 6; O. Reg. 82/17, s. 7 (3). Moving Party’s Reply Factum (11) If the responding party’s factum raises an issue on which the moving party has not taken a position in the moving party’s factum, that party may serve a reply factum.  O. Reg. 61/96, s. 6. (12) The reply factum shall contain consecutively numbered paragraphs setting out the moving party’s position on the issue, followed by a concise statement of the law and authorities relating to it.  O. Reg. 61/96, s. 6. (13) The moving party shall file three copies of the reply factum with proof of service within 10 days after service of the responding party’s factum.  O. Reg. 61/96, s. 6. Date for Hearing (14) The Registrar shall fix a date for the hearing of the motion, which shall not be before the earlier of the filing of the moving party’s reply factum, if any, and the expiry of the time for filing the moving party’s reply factum. O. Reg. 82/17, s. 7 (4). Oral Hearing (15) If, on considering the written materials, the court determines that an oral hearing is warranted, the court shall, despite subrule (1), order an oral hearing to determine the motion, and the Registrar shall fix a date for it. O. Reg. 82/17, s. 7 (4). Time for Delivering Notice of Appeal (16) Where leave is granted, the notice of appeal shall be delivered within seven days after the granting of leave.  O. Reg. 61/96, s. 6. Costs Appeal Joined with Appeal as of Right (17) Where a party seeks to join an appeal under clause 133 (b) of the Courts of Justice Act with an appeal as of right, (a) the request for leave to appeal shall be included in the notice of appeal or in a supplementary notice of appeal as part of the relief sought; (b) leave to appeal shall be sought from the panel of the Court of Appeal hearing the appeal as of right; (c) where leave is granted, the panel may then hear the appeal.  O. Reg. 175/96, s. 2; O. Reg. 14/04, s. 30 (2); O. Reg. 82/17, s. 18, 19. Costs Cross-Appeal Joined with Appeal or Cross-Appeal as of Right (18) Where a party seeks to join a cross-appeal under a statute that requires leave for an appeal with an appeal or cross-appeal as of right, (a) the request for leave to appeal shall be included in the notice of appeal or cross-appeal or in a supplementary notice of appeal or cross-appeal as part of the relief sought; (b) leave to appeal shall be sought from the panel of the Court of Appeal hearing the appeal or cross-appeal as of right; (c) where leave is granted, the panel may then hear the appeal.  O. Reg. 175/96, s. 2; O. Reg. 206/02, s. 14; O. Reg. 14/04, s. 30 (3); O. Reg. 394/09, s. 25; O. Reg. 82/17, s. 18, 19. Application of Rules (19) Subrules (1) to (16) do not apply where subrules (17) and (18) apply.  O. Reg. 175/96, s. 2. Commencement of Appeals Time for Appeal and Service of Notice 61.04 (1) An appeal to an appellate court shall be commenced by serving a notice of appeal (Form 61A or 61A.1) together with the certificate required by subrule 61.05 (1), within 30 days after the making of the order appealed from, unless a statute or these rules provide otherwise, (a) on every party whose interest may be affected by the appeal, subject to subrule (1.1); and (b) on any person entitled by statute to be heard on the appeal. O. Reg. 14/04, s. 31; O. Reg. 536/18, s. 2 (1). (1.1) The notice of appeal and certificate need not be served on, (a) a defendant who was noted in default; or (b) a respondent who has not delivered a notice of appearance, unless the respondent was heard at the hearing with leave.  O. Reg. 14/04, s. 31. Title of Proceeding (2) The title of the proceeding in an appeal shall be in accordance with Form 61B.  R.R.O. 1990, Reg. 194, r. 61.04 (2). Notice of Appeal (3) The notice of appeal (Form 61A or 61A.1) shall state, (a) the relief sought; (b) the grounds of appeal; and (c) the basis for the appellate court’s jurisdiction, including references to, (i) any provision of a statute or regulation establishing jurisdiction, (ii) whether the order appealed from is final or interlocutory, (iii) whether leave to appeal is necessary and if so whether it has been granted, and (iv) any other facts relevant to establishing jurisdiction. O. Reg. 19/03, s. 11; O. Reg. 536/18, s. 2 (2). (4) The notice of appeal, with proof of service, shall be filed in accordance with subrule 4.05 (4) (leaving in or mailing to court office) in the Registrar’s office within ten days after service.  R.R.O. 1990, Reg. 194, r. 61.04 (4). Certificate or Agreement Respecting Evidence Appellant’s Certificate Respecting Evidence 61.05 (1) In order to minimize the number of documents and the length of the transcript required for an appeal, the appellant shall serve and file, with proof of service, with the notice of appeal an appellant’s certificate respecting evidence (Form 61C) setting out only the portions of the evidence that, in the appellant’s opinion, are required for the appeal.  O. Reg. 570/98, s. 5; O. Reg. 82/17, s. 8 (1). Respondent’s Certificate Respecting Evidence (2) Within fifteen days after service of the appellant’s certificate, the respondent shall serve on the appellant, and file with proof of service, a respondent’s certificate respecting evidence (Form 61D), confirming the appellant’s certificate or setting out any additions to or deletions from it.  R.R.O. 1990, Reg. 194, r. 61.05 (2); O. Reg. 82/17, s. 8 (2). (3) A respondent who fails to serve and file a respondent’s certificate within the prescribed time shall be deemed to have confirmed the appellant’s certificate.  R.R.O. 1990, Reg. 194, r. 61.05 (3); O. Reg. 82/17, s. 8 (3). Agreement Respecting Evidence (4) Instead of complying with subrules (1) to (3), the parties may, within thirty days after service of the notice of appeal, make an agreement respecting the documents to be included in the appeal book and compendium and the transcript required for the appeal.  R.R.O. 1990, Reg. 194, r. 61.05 (4); O. Reg. 19/03, s. 12. Ordering Transcripts (5) The appellant shall within thirty days after filing the notice of appeal file proof that the appellant has ordered a transcript of all oral evidence that the parties have not agreed to omit, subject to any direction under subrule 61.09 (4) (relief from compliance).  R.R.O. 1990, Reg. 194, r. 61.05 (5). (6) A party who has previously ordered a transcript of oral evidence shall forthwith modify the order in writing to comply with the certificates or agreement.  R.R.O. 1990, Reg. 194, r. 61.05 (6). (7) When the evidence has been transcribed, the authorized court transcriptionist shall forthwith give written notice to all parties and the Registrar.  R.R.O. 1990, Reg. 194, r. 61.05 (7); O. Reg. 170/14, s. 20. Costs Sanctions for Unnecessary Evidence (8) The court may impose costs sanctions where evidence is transcribed or exhibits are reproduced unnecessarily.  R.R.O. 1990, Reg. 194, r. 61.05 (8).