Court of Appeal Handbook

Court of Appeal
Handbook
A guide to representing yourself
at the Court of Appeal of Ontario
Court of Appeal
Handbook
A guide to
representing yourself
at the Court of Appeal
for Ontario.
Note
THIS HANDBOOK WAS PREPARED as a pro bono
project by the Clerks for the Court of Appeal for
Ontario, 2004 to assist and to provide useful
suggestions to litigants involved in civil and criminal
appeals before the Court of Appeal. Updates to this
handbook were completed by Natasha Kanerva and
Kim Potter, Law Clerks for the Court of Appeal for
Ontario, 2012. While every effort was made to
ensure completeness and accuracy, the reader
should be aware that the applicable law, statutes
and rules may change from time to time. Please
refer to the references contained in this handbook
and confirm that any statements made are complete
and remain current. Links to web site resources are
provided throughout this manual. If you encounter a
broken link, use your browser to conduct a key word
search for the missing resource. If possible, please
report the broken link to us at info@pblo.org.
This is not an official document of the Court of
Appeal and therefore does not bind the Court in the
event of any conflict with a law, statute, rule or
practice of the Court.
Contents
1. Introduction ....................................................................................................... 4
2. Should I appeal to the Court of Appeal or to a different court? ......................... 4
Leave to Appeal ........................................................................................................................................................... 5
Criminal Appeals: Federal Offences or Provincial Offences ........................................................................................ 5
Federal Offences .......................................................................................................................................................... 6
Civil Appeals: When You are Suing or Being Sued by Another Person ........................................................................ 8
3. How do I build my argument? ............................................................................ 9

Building Your Written and Oral Argument ................................................................................................................ 10
4. How do I do legal research? ..............................................................................14

Introduction ............................................................................................................................................................... 14
How To Do Legal Research......................................................................................................................................... 15
5. What are the risks of appealing a case? What are costs? .................................16
How Costs Work at the Court of Appeal .................................................................................................................... 17
6. How do I present my case in court? ..................................................................20

The Appellants Argument ......................................................................................................................................... 22
The Respondents Argument ..................................................................................................................................... 22
APPENDIX A ...........................................................................................................24
Glossary...................................................................................................................................................................... 24
APPENDIX B Getting Legal Help with an Appeal ..................................................25

The Appeals Assistance Project, legal clinics, and the lawyer referral service .......................................................... 25
Specialty Legal Clinics ................................................................................................................................................ 26
Appendix C .............................................................................................................30
Filing documents what, how and when .................................................................................................................. 30
Appendix D ............................................................................................................34
Writing your factum for civil appeals......................................................................................................................... 34
Appendix E .............................................................................................................43
A guide to inmate appeals ......................................................................................................................................... 43
1. Introduction
How to use this handbook
THIS HANDBOOK will help you answer these questions:
1)
2)
3)
4)
5)
Should I appeal to the Court of Appeal or to a different court?

How do I build my legal argument?
How do I do legal research?
What are the risks of appealing the decision against me? What are the costs?
How do I present my case in court?
Representing yourself is very difficult. You should ask a lawyer to review your documents, help you develop your
argument, and help with legal research. If you cannot afford a lawyer to do some work, you can look for a legal clinic
that will help you for free. Legal aid clinics are listed in Appendix B. You can also read the assistance provided on the
Court of Appeal website at: http://www.ontariocourts.on.ca/coa/en/shp/civil.htm
This Guide refers to three kinds of laws: statutes, rules, and case law. Statutes are laws passed by the government. You
can find them in law libraries or online. Ontario statutes are available at: http://www.e-laws.gov.on.ca/
Federal statutes, including the Criminal Code, are available at: http://laws.justice.gc.ca/en
Rules explain the procedure you must follow in an appeal. The Rules of Civil Procedure apply to civil cases. You can find
them in a law library or at: http://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg-194.html
The Court of Appeal for Ontario Criminal Appeal Rules apply to criminal appeals. These Rules can be accessed at:
http://www.canlii.org/en/ca/laws/regu/si-93-169/latest/si-93-169.html
You must also be aware of Practice Directions, which are different in each court. You can find the Court of Appeal
Practice Directions on its website at: http://www.ontariocourts.on.ca/coa/en/notices/
Case law contains a judges reasons for deciding a dispute in a certain way. Case law is important because in order to
ensure consistency, a judge will decide the case before him or her in the same way that a similar previous case was
decided. Case law is discussed in Chapter 3.
2. Should I appeal to the Court of Appeal or to a

different court?
THERE ARE THREE COURTS in Ontario: the Ontario Court of Justice, the Superior Court of Justice, and the Court of
Appeal for Ontario.
The Ontario Court of Justice has judges and justices of the peace. Justices of the peace hear provincial offence cases.
Judges hear all other criminal cases, child protection cases, and appeals from decisions of justices of the peace.
Court of Appeal Handbook Pro Bono Law Ontario (Last revised July 10, 2012)
The Superior Court of Justice is divided into four parts:
Small Claims Court deals with civil cases for less than $25,000.
Divisional Court hears appeals from administrative tribunals, such as the Ontario Human Rights Commission
Family Court hears matters of divorce, support, and custody.
The rest of the Court hears all other criminal and civil cases and appeals from the Ontario Court of Justice.
Some cases must be appealed to the

Superior Court before they can be
appealed to the Court of Appeal. If you
bring your appeal to the wrong court,
that court will send you to the correct
court and you will have to pay all of
the court fees again.
The rules that govern which court has
jurisdiction over your appeal are
different for federal offences,
provincial offences, and civil actions.
The rules are complex. You should ask a lawyer which court you should go to.
Leave to Appeal
Sometimes you are not allowed to appeal your decision without asking the court for permission. This is called getting
leave to appeal. Usually you do not need leave to appeal for the first time that the decision is appealed.
For an indictable offence (see Federal Offences see page 5), you will need leave to appeal:
On a question of fact or mixed law and fact (see Identify the Mistakes page 11).
Against your sentence.
If your appeal of a summary conviction has been dismissed by the Superior Court, and you wish to appeal to the Court of
Appeal, you can only appeal on a question of law (see Identify the Mistakes page 11) and you must get leave.
Usually, you argue that you should be granted leave at the same time that you argue the appeal.
If you are in jail and wish to be released on bail before your appeal, you must get leave before you are granted bail.
Criminal Appeals: Federal Offences or Provincial Offences

The court to which you should bring your appeal will depend on whether you are charged with a provincial offence or a
federal offence.
PROVINCIAL OFFENCES (See Flow Chart A)

The Provincial Offences Act explains which offences are provincial offences. Provincial offences include offences in:
The Highway Traffic Act

The Occupational Health and Safety Act
The Provincial Offences Act
A Municipalitys By-laws
If you are convicted of a provincial offence, you usually cannot appeal the conviction to the Court of Appeal unless you
have appealed it to a lower court first.
To appeal your case, first you must look at the document that sets out the charge or charges against you. This document
may be called an information, an offence notice, a summons, or a parking infraction notice. If the document charging
you is an offence notice, a summons, or a parking infraction notice, then you appeal to the Ontario Court of Justice. If it
is an information, you appeal to the Ontario Court of Justice if you were convicted by a justice of the peace, and to the
Superior Court of Justice if you were convicted by a judge. If you have already appealed to these courts, then you must
apply for leave to appeal to the Court of Appeal.
Federal Offences (See Flow Chart B)

If you have been convicted of a criminal offence, an offence involving drugs, or an offence relating to income taxes, you
have been convicted of a federal offence.
If you were convicted of a criminal offence that does not involve drugs, you were convicted under the Criminal Code. If
you were convicted of a drug offence, you were convicted under the Controlled Drugs and Substances Act. If you were
convicted of an offence related to your taxes, you were convicted under the Income Tax Act.
There are three types of federal offences:
Indictable offences
Summary conviction offences
Hybrid offences
Indictable offences are the most serious offences. Common examples are sexual offences against young people, criminal
negligence causing bodily harm or death, theft over $5000, robbery, and murder.
Summary conviction offences are less serious than indictable offences. Common examples are causing a public
disturbance and simple possession of drugs.
Hybrid offences can either be indictable or summary conviction offences. On the information, the Crown will decide
how serious the offence is and will choose to prosecute you for an indictable offence if it is serious or for a summary
conviction offence if it is less serious. Common examples are impaired driving, theft under $5000, common assault, and
sexual assault.
For some offences, the information will charge you with an indictable offence but you will be convicted of a summary
conviction offence. It does not matter what kind of conviction you received. If the information says that the Crown chose
to proceed by way of indictment, then you can appeal to the Court of Appeal. If not, you must appeal to the Superior
Court of Justice.
If you are convicted of both an indictable offence and a summary conviction offence, you can bring an appeal on both
convictions to the Court of Appeal.
Civil Appeals: When You are Suing or Being Sued by Another Person
DIFFERENCE BETWEEN FINAL AND INTERLOCUTORY ORDERS
You can only appeal final orders to the Court of Appeal. You cannot appeal interlocutory orders to the Court of Appeal
unless you appeal them to a lower court first. Final orders include judgments that hold you responsible for damages or
that dismiss the case. Interlocutory orders are made during the case and do not end the litigation.
Determining whether an order is final or interlocutory is complicated. During the litigation, any party can bring a motion
that the judge decides with an order. Sometimes, the order dismisses the action; in other cases, it may not. In general, if
an order ends the lawsuit, then it is a final order. If it does not end the suit, then it is an interlocutory order. If you do not
know whether the order is final or interlocutory, you will need to ask a lawyer.
APPEALING INTERLOCUTORY ORDERS (See Flow Chart C)
If the interlocutory order was made by a Master, you have a right to appeal that order to a judge of the Superior Court. If
you are appealing an interlocutory order made by a judge of the Superior Court, then you should bring your appeal to
the Divisional Court. You may only appeal an interlocutory order to the Court of Appeal after you have already appealed
to the Divisional Court.
APPEALING FINAL ORDERS (See Flow Chart D)

In general, if you are appealing a final order, you will appeal to the Divisional Court if:
A judge has made an order for less than $50,000

You are appealing an order of a Master (who is not a judge)
You are appealing an order made in Small Claims Court that involves more than $2,500 or
personal property worth more than $2,500
If the Divisional Court dismisses your appeal, you can appeal to the Court of Appeal. However, you will have to
obtain leave to appeal to the Court of Appeal (see Leave to Appeal page 5).
If the final order you are appealing does not fall into one of these three categories, then your appeal should go to the
Court of Appeal. There are exceptions to this general rule that cannot be covered here.
If you are not sure, you should consult a lawyer.
3.
How do I build my argument?
WHICHEVER SIDE YOU ARE ON, the more preparation you do, the better your case will be.
If you are the appellant, you need to know the grounds for your appeal to put them in your Notice of Appeal (see
Appendix C).
This section provides a step-by-step approach to building your argument. You should use the legal research sources
discussed in Chapter 3 or seek help from one of the legal clinics listed in Appendix B.
You should read this section after you understand the costs of an appeal (see Chapter 6).
Some Tips Before You Start
The key ingredients of success on appeal are planning, preparation, and hard work. Judges will have little patience for
you if you have not prepared and if your argument appears emotional.
You must persuade the three judges on the panel to see the facts and the law as you do. The art of persuasion begins by
recognizing what kind of arguments will be the most persuasive and ends once you have thoroughly developed those
arguments. Here are some general tips:
BE PREPARED If you come to the court well prepared, you will instantly gain credibility with the judges. You
must be familiar with the facts of the case and the law that applies to them. You must have thought out your
arguments.
BE CREDIBLE Judges are human, and if they do not trust you, your job will be harder. Judges trust people who
are prepared, who do not exaggerate, and who acknowledge the weaknesses of their case. If you can do these
things in your factum and oral arguments, you will be more persuasive.
BE REASONABLE As an unrepresented litigant, you are probably emotionally invested in your case. It is
important to remember that the Court of Appeal must decide the case reasonably and in accordance with the
law.
The more you look at your arguments from an outsiders perspective, the more likely it is that you can make your
arguments reasonable and persuasive.
Building Your Written and Oral Argument

You have two opportunities to make your argument to the Court of Appeal: in written form in a factum and in oral
argument. An example of a factum is provided in Appendix D. Effective strategies for presenting your oral argument are
discussed in Chapter 5. In many ways, your factum is the more important of the two. You submit your factum before you
make your oral argument. The judges read it before they see you, and they may form an opinion before you open your
mouth. If you can state your arguments persuasively in written form, you will have gone a long way toward winning your
case.
If you are the appellant, your goal should be to complete the following sentence: The lower court judge made an error,
for the following reasons. If you are the respondent, your goal is to complete this sentence: The lower court judge did
not make the error the appellant says, for the following reasons.
STEP 1 READ THE LOWER COURT DECISION AND RELATED MATERIALS
The first thing you should do is read the lower court decision you are appealing. Read it carefully and more than once.
You are looking for legal or factual mistakes that give the Court of Appeal a legal reason to overturn the decision. These
mistakes are not easy to find because judgments can be full of legalese. You may have to research to understand the
judgment.
Reading a Decision
The best way to try to find a mistake is to understand the legal issues in the case. Usually, the judge will list the issues at
the beginning or end of the judgment or as headings throughout the decision.
After you identify the issue, you should find out what the trial judges decision on that issue was. For example, in a
breach of contract case, the trial judge will either find that there was a breach of contract or that there was no breach.
In a criminal case, the trial judge will either find that the defendant is guilty or not guilty.
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Your next thing is to find out how the trial judge came to that legal conclusion. Legal conclusions are always supported
by two things: (1) findings of fact and (2) decisions about the law.
Findings of Fact
Findings of fact may deal with something the parties agreed on or with something that the parties disagreed about.
Often a trial judge will identify findings of fact by writing I find that or I make the following findings. However, if a
judge states anything as fact, even without a clear introductory phrase, the Court of Appeal will treat it as a finding of
fact.
Findings of Law
The judge will apply a legal test to the facts to decide the case. The legal test is either in a statute (such as the Criminal
Code) or in other judges decisions. For example, in a contract case a judge must find that the parties (1) had a contract
and (2) that it was broken to award damages.
In a criminal case, the Criminal Code will state the factual elements that have to be met before a person can be found
guilty. For example, in a robbery case, a judge must find that the accused (1) stole from the victim and (2) used violence
or threats of violence. If the accused did not use violence, the accused will not be guilty of robbery but of theft.
Reading Transcripts
In criminal appeals, you must give the trial transcripts to the court. You should pay attention to the judges charge to the
jury because most errors of law occur in that charge. In some civil cases, transcripts can be useful if your appeal relates
to something that happened in the trial.
The first reason to read the transcripts thoroughly is to find unfair decisions about procedure. These can be important in
criminal cases. Second, the transcripts contain the trial judges instructions to the jury. These instructions may contain
errors. Because the jury does not give reasons, the only mistakes may be in the instructions to the jury.
The third reason to read the transcripts is that the evidence given at trial may be different from the judges findings of
fact. If that is so, the trial judge may have made an error and that could be a ground of appeal.
Finally, you should read the transcripts to become familiar with the evidence presented at trial. You need to be familiar
with the evidence before you write your factum and prepare your oral argument.
There is no correct way to approach transcripts except to read them from start to finish. Transcripts can be long, boring,
and repetitious. Even so, you must familiarize yourself with them. You can be surethe judges will.
Reading Everything Else
There may be other documents involved in your appeal. If you are charged with a criminal offence, there will be an
information or an indictment, which sets out the charges against you. There may be affidavit evidence or exhibits that
are important to your case. Commercial cases may involve contracts. Family cases may involve separation agreements.
All of the material that was evidence presented at trial may be important to your appeal, and you
should read it for the same reason you read the transcripts and the decision: it may reveal an error
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made by the lower court judge. Also, it is crucial that you are as prepared as possible.
STEP 2 IDENTIFY THE MISTAKES YOU WILL ARGUE
The appellant must show how the judge made an error that justifies overturning the decision. The error must have
affected the decision. Sometimes a judge will make an error that does not affect the final decision. The Court of Appeal
will not overturn the decision because the error did not affect the bottom line. You have to show that if the trial judge
did not err, the decision would have been different. The appellant must show where the trial judges mistake is. In your
factum, you should state the paragraph of the judgment or the page of the transcripts where the mistake was made. In
oral argument, you should be prepared to tell the judges where to look to find the mistakes.
The respondent must show why the trial judge did not make the error the appellant claims or why the error does not
justify overturning the decision.
The different kinds of mistakes are:
Mistakes of fact
Mistakes of law
Mistakes of fact and law
Mistakes of Fact
The Court of Appeal may find that a trial judge made an error about the facts of the case that justifies overturning the
decision. However, this is the hardest kind of argument to make. The Court of Appeal will only overturn decisions
because of mistakes of facts if the mistake is obvious and if it is important to one of the legal conclusions reached by the
judge. This was stated in a Supreme Court of Canada case called Housen v. Nikolaisen, 2002 SCC 33. Courts of appeal
cannot overturn decisions because of factual errors unless those errors are palpable and overriding. If a mistake is not
important enough to the issues, the Court of Appeal will not overturn the decision. Therefore, proving that a witness lied
will not be enough to win your appeal.
Sometimes claiming that the trial judge made a mistake of fact will be the only argument that you can make. This is
especially true in criminal cases, where the legal test is usually clearly set out in the Criminal Code. If so, the best way to
persuade the judges that a mistake of fact justifies overturning a decision is to identify the mistake clearly, state why it is
obvious, and state why it is important to the legal issues of the case.
Mistakes of Law
It is easier to win an appeal if the judge made a mistake of law because an error of law does not have to be obvious or
important to justify overturning the decision. The Court of Appeal may intervene even if the mistake is small. However,
you will have to show why the trial judge would have reached a different conclusion if he or she did not make that
mistake.
The most common types of mistakes of law are:
Mistakes applying a statute

Mistakes applying case law
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Mistakes Applying a Statute

A trial judge may make a mistake interpreting a statute. For example, if the case relates to robbery under the Criminal
Code, the trial judge may forget that violence is necessary to prove that offence.
You should look at the language of the statute itself. Usually, a court is required to interpret a statute according to its
plain and obvious meaning. You should also look at other cases that have interpreted the same statute. For help finding
these cases, see the section on legal research in Chapter 3.
Mistakes Applying Case Law
Sometimes the legal test comes from cases. A lower court judge may have interpreted those cases incorrectly. The best
way to try to find out the test that should have been applied is to look for the leading cases in the relevant textbooks
and then to read them.
The best cases are those that are recent, those that are decided by appeal courts (especially by the Court of Appeal for
Ontario) or the Supreme Court of Canada, and those that have similar facts to your case. If you can show that the Court
of Appeal made the decision that you want it to make in a similar case, you have a very persuasive argument.
Mistakes of Fact and Law
It is possible for a lower court judge to make a mistake applying the proper legal test to the facts.
Such mistakes are very subtle and hard to argue. Make sure that you make this argument as clearly and simply as you
can.
STEP 3 GATHER YOUR FACTS
Some of the facts in your case will support the argument you want to make, some will not. The facts are important to
your factum, where you will set them out concisely. They are also important to the legal argument you make both in
your factum and orally.
Parties do not only win cases based on the details of their cases or because of small points of law. They also win because
they can tell a good story about why they should win. You have to be able to tell the Court of Appeal why it would be
unfair for you to lose. To do so, you have to be able to marshal the facts into a convincing narrative or story.
Lawyers often make lists of good facts and bad facts. Then they organize the good facts into an argument that
supports their position, and they try to find reasonable explanations for the bad facts.
You must not hide the bad facts or lie. Instead, tell your story in a convincing and reasonable way to build a solid
foundation for a strong legal argument.
STEP 4 DO LEGAL RESEARCH
Every argument you wish to make will be more persuasive if you can point to other legal authority that agrees with your
position. The best legal authority is usually case law.
The only cases that are binding on the Court of Appeal for Ontario are other Court of Appeal for Ontario cases and
Supreme Court of Canada cases. Binding means that the court must do the same thing in your case as in the other case.
Decisions by other courts of appeal in Canada or in lower Ontario courts are persuasive, but they are not binding. If you
13
are going to use non-binding legal authority, you must be prepared to argue why the Court of Appeal should follow the
reasoning in that case.
If you discover a case that is binding and relevant but that does not support your decision, you must give that case to the
court.
STEP 5 DECIDE WHICH ARGUMENTS YOU WILL MAKE
Dont make too many arguments. Even if you find several mistakes, it is best to take more time to argue the most
important mistakes. This is especially true in oral argument, where you may want to limit yourself to two or three of the
most persuasive errors. If you try to argue ten or twelve points, your weaker arguments may drown out your stronger
ones.
STEP 6 ARGUMENTS YOU CANNOT MAKE
Never insult the trial judge, the other party, or the Crown. Not only does this do nothing to advance your position, it will
ruin your credibility and make you appear unreasonable. Never argue that a trial judge made a mistake without saying
where the mistake was made in the judgment and why it was made. In other words, do not make unsupported
arguments.
4. How do I do legal research?

Introduction
An important part of preparing your appeal is researching the legal issues in your case. Once you have finished this
research, you will be able to effectively state your legal arguments. Also, after each legal point that you make in your
factum, you must write the case name, statute, or other authority that you use to support the point.
The best place to do research is in a law library. Contact your local public library to find out about any law databases that
may be available. In Toronto, you can access LawSource at the Toronto Reference Library (789 Yonge Street). LawSource
contains a large database of Canadian case law, legislation, and other sources.
Also, every law school has a law library. In Toronto, you can use the Bora Laskin Law Library at the University of Toronto.
Its website can be accessed at: http://library.law.utoronto.ca/
You can also use the library at Osgoode Hall Law School. Its website is at: http://www.osgoode.yorku.ca/library
Both websites have links to other resources. You can also research at the law libraries at Ottawa University, Queens
University, University of Western Ontario, and Windsor University. Another place to do legal research is The Great
Library, which is located in Osgoode Hall, 130 Queen St. West, Toronto. It is in the same building as the Court of Appeal.
However, be aware that subscription computer databases are restricted to lawyers only. It has a website that lists other
useful resources at: http://rc.lsuc.on.ca/library/home.htm and http://www.llrx.com/features/ca.htm
Also Visit: http://www.cleo.on.ca/english/pub/onpub/online.htm
The following webpage has links to Canadian law libraries and textbooks, and discusses the Canadian legal system:
14
http://rc.lsuc.on.ca/library/collections_libraries.htm
Additionally, this site is a good source of general legal information:
http://rc.lsuc.on.ca/library/collections_libraries.htm
How To Do Legal Research

1. DEFINE THE PROBLEM
The first and most important step is to properly identify the type of problem that you must address.
In criminal appeals, your problem lies in the general area of criminal law. In civil appeals, there is a broader range of
possible areas of law. The trial judges decision will help you to focus your research. If, for example, the judge ruled that
you were liable for negligence, you know that your appeal will address this issue.
2. SECONDARY SOURCES
Once you know what area of law is relevant, you should consult secondary sources such as textbooks or journal articles.
They are a great way to get basic information on the law. They may not answer your specific question, but they will help
you to learn the language and logic of the law. They can also help you to find leading cases and statutes relevant to your
appeal.
You can also use a legal encyclopaedia, which provides brief statements of law and a list of leading cases. One
encyclopaedia is the Canadian Encyclopaedic Digest (CED), which is available in law libraries. The CED is organized by
topic, in a hierarchy. For example, you might use the CED to research a question about assault by looking up the topic
Criminal Law. Under Criminal Law, you would find Assault and Related Offences. Under this subheading, you
would other topics. By going through this process, you can narrow your search to the proper area of the law.
This site provides a guide to secondary sources and links to textbooks: http://www.llrx.com/features/ca_sec.htm
Irwin Law publishes a series entitled Essentials of Canadian Law. These are short books that outline particular areas of
law, and can be an excellent starting point. You can find a list of these titles at their website or in law libraries:
http://www.irwinlaw.com/store/series
Although textbooks, journal articles, and legal encyclopaedias can be useful, they are not binding on courts. You must
find cases or statutes to confirm that the principles of law you found are correct and up-to-date.
3. STATUTES
There may be a statute that applies to your case. It is important to start with the statute before reading cases. There are
several online sources of statutes. The Department of Justice maintains a website that provides access to all federal
statutes, such as the Criminal Code and the Charter of Rights and Freedoms at:
http://laws.justice.gc.ca/en/
(click on Statutes by Title)
For Ontario laws, the government lists all statutes at: http://www.e-laws.gov.on.ca
15
Both websites have search functions that can help you find the correct statute. Law libraries also have printed versions
of the statutes.
Note that when you are preparing statutes for Schedule B of your factum, you cannot use the online
version of federal statutes because they are not official (see Appendix C). Instead, you must photocopy the statute from
the books in a law library.
4. CASES
This is the most important part of your research because previous cases determine how a court will rule in your case.
One of the best ways to find the names of key cases is in textbooks.
There are also free websites that offer access to cases. The largest is: http://www.canlii.org which has collections from
the Supreme Court of Canada, the Court of Appeal for Ontario, and some Superior Court Judgments. You can also access
cases on court websites. For example: http://www.ontariocourts.on.ca/decisions_index/en/
http://www.scc-csc.gc.ca/decisions/index-eng .asp provides links to the Court of Appeal for Ontario;
provides access to decisions of the Supreme Court of Canada.
There are also commercial electronic caselaw services. You cannot access these at home. They are expensive to access,
but you can get free access to the LawSource component of WestlaweCARSWELL at the Toronto Reference Library as
well as some other Toronto Public Library branches. For more information on WestlaweCARSWELL, visit:
http://www.westlawecarswell.com
You must make sure you have the most recent case on the subject. A good way to do this is in a database is through the
note up function. You can also note up a case in the Canadian Case Citations books in the library. Noting up a case
means finding out if that case has been considered by another court or overturned. This is the only way to make sure
that the case you are referring to is current.
Note that only the decision of the Court of Appeal for Ontario and the Supreme Court of Canada provide precedents that
are binding decisions for courts in Ontario.
Courts of Appeal and lower courts from other provinces are persuasive but will not force the Court of Appeal for Ontario
to decide a case in a particular manner. Because Quebec has a very different legal system, Quebec cases on family or
civil law are not persuasive in Ontario.
5. What are the risks of appealing a case? What are

costs?
IF YOU LOSE A CIVIL APPEAL, you can be ordered to pay the other sides legal expenses, which can be tens of thousands
of dollars.
If you are appealing a criminal case, you do not need to worry about costs.
16
When a civil trial or appeal is finished, a judge can order one side to pay the legal expenses of the other side. This
payment is called a costs award. Costs are not a fine or a punishment.
How Costs Work at the Court of Appeal

Costs are important in three situations:
YOU WANT TO START AN APPEAL
You should understand the financial risks of starting an appeal. If you win, you may not have to pay the costs order
made at trial. If you lose, you may have to pay the expenses of the other party for the trial and appeal.
THE OTHER SIDE STARTS AN APPEAL AGAINST YOU
You should understand the financial risks of responding to an appeal. If you win, you can ask the Court to order the
other side to pay costs. If you lose, you may have to pay the other sides legal expenses for the appeal as well as your
own.
YOU ONLY WANT TO APPEAL THE TRIAL JUDGES COSTS ORDER
You can appeal a costs order without appealing the case. Make sure that you are in the right court by reading sections 6
and 19 of the Courts of Justice Act. This statute is in libraries and is on:
http://www.canlii.com/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html
Legal Rules About Costs

The Rules of Civil Procedure explain when costs are ordered. Rule 58 applies to trials; Rule 61 applies to appeals. You can
find the rules in a law library or at: http://www.canlii.com/en/on/laws/regu/rro-1990-reg-194/latest/rro-1990-reg194.html
There is a special set of rules for family law cases called the Family Law Rules. Rule 24 applies to trials; Rule 38, to
appeals. The rules are explained at: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm
The Family Law Rules deal with the same issues as the Rules of Civil Procedure.
How Judges Decide the Amount of Costs
Judges have discretion to order one party to pay costs; they can choose who should pay and how much that person
should pay. Judges examine several factors in making this decision. You should understand the factors before asking for
costs or challenging the amount the other side wants. The factors are in Rule 57.01 of the Rules of Civil Procedure. They
are:
1. The amount claimed and the amount awarded in the appeal.
2. The relative success of each party.
3. How complicated the appeal was.
17
4.
5.
6.
7.
8.
If the case raises important issues without clear answers.

If a party increased or decreased the time to hear the appeal.
If a step in the appeal was taken out of spite or by mistake.
If a party refused to admit something that should have been.
If a party started two cases when one would have worked or increased costs by refusing to help parties on the
same side.
9. The lawyers experience, rates, hours spent on the case.
10. The partys reasonable expectations about costs.
11. Any other matter relevant to the question of costs.
For an example of the way that judges deal with costs, read Boucher v. Public Accountants Council (2004) for
Ontario or Moon v. Sher (2004). They are available here:
http://www.canlii.org/en/on/onca/doc/2004/2004canlii14579/2004canlii14579.html
http://www.canlii.org/en/on/onca/doc/2004/2004canlii39005/2004canlii39005.html
Costs If Parties Tried to Settle the Case
Rule 49.10 has special rules for costs if there is an offer to settle a case. The rule penalizes people for refusing
reasonable offers to settle by ordering them to pay costs even if they win. If a lot of money is at stake, you should get
advice before making or refusing an offer to settle.
Costs If Parties Should Have Used Simplified Procedure
Rule 76 creates a simplified procedure for cases that concern a small amount of money. Rule 76 does not apply to
appeals, case managed matters, class actions, the Construction Lien Act, or family lawsuits. If a case should have used
the simplified procedure but did not, Rule 76.13 assigns costs to the party that started the case, regardless of who wins.
The Expenses that Costs Cover If One Party Has a Lawyer
You should understand the financial risks of an appeal. Even if you win, you will have to pay for some of the expenses
out of your own pocket. It is very rare for a costs award to cover all of the legal costs of an appeal.
For someone who has a lawyer, there are three different scales of costs:
The partial indemnity scale

The substantial indemnity scale
The full indemnity scale
PARTIAL INDEMNITY COSTS

Courts usually order partial indemnity costs. Partial indemnity costs cover about half of the total cost of a lawyer. This
includes some of the lawyers fees, travel expenses, long-distance calls, and secretarial work. If you get a costs order,
you will pay half of your trial and appeal expenses.
18
SUBSTANTIAL INDEMNITY COSTS

Substantial indemnity costs cover almost all of a partys legal expenses. They cover more expenses than partial
indemnity costs. However, they are only awarded when the judge thinks that one party conducted the litigation in an
abusive manner. This does not mean that one party was rude. It means that the party did not follow or abused the Rules
of Civil Procedure.
You should be careful to obey every court order and all of the Registrars instructions to avoid having substantial
indemnity costs ordered against you. Do not bring motions just to get more time or to harass the other side and do not
refuse reasonable requests made by the other side.
FULL INDEMNITY COSTS
Full indemnity costs cover all of the legal expenses of one party. Judges always have the power to award full indemnity
costs, but they are only awarded in specific, exceptional situations, including lawsuits about wills.
If you are appealing a case based on a contract, you should check the contract to see if you have agreed to pay the other
sides costs on a substantial or full indemnity basis.
Who Pays Costs
The side that loses an appeal usually has to pay the costs of the side that wins. Before you appeal a case, you must
decide whether to risk having to pay the other partys legal expenses, which could be in the tens of thousands of dollars.
You may wish to talk to a lawyer about your chances of success before bringing an appeal.
A judge does not have to order the loser to pay the winners costs. Sometimes, no costs will be ordered. This is rare and
usually happens when a new legal issue is argued for the first time. Sometimes the winner may have to pay the losers
costs. For example, costs can be awarded against a winner who did not comply with the Rules of Civil Procedure.
A Self-Represented Persons Costs
Self-represented people do not receive the same kind of costs that people with lawyers receive. Costs cover the legal
expenses that result from litigation. A person without a lawyer does not have to pay a lawyer.
A self-represented person must provide receipts that prove that he or she lost money as a result of doing work that a
lawyer would normally do. This could include travel expenses, photocopying, transcripts, time off work, or child-care
expenses. A person without a lawyer will not receive costs for things that all litigants must do, like coming to court.
If you are representing yourself and you request costs from the other side, you should read Fong v. Chan (1999), which
explains everything summarized above. You will be able to find this case in any law library
or at: http://www.ontariocourts.on.ca/decisions/1999/December/fong.htm
Asking for Costs at the Court of Appeal
If you want the Court of Appeal to order the other side to pay costs, you must ask for costs in your Notice of Appeal and
at the end of your factum.
19
If you lost at trial and want the other side to pay the costs that were awarded at trial, you need to ask for costs below.
This is different from appealing a costs order. If you appeal a trial judgment andwin, you will probably get an order
saying that the other side has to pay costs below. You get those costs because you should have won your case the first
time.
Appealing Costs Orders
Appealing a costs order means that you want the Court to change the amount of costs you were ordered to pay at a
trial. You can appeal a costs order alone or at the same time that you appeal the trial decision. Even if you lose your
appeal, the court may reduce the costs order.
You must always ask for leave to appeal a costs order. If you are appealing the both the trial judgment and the costs
order, you must ask for leave in your Notice of Appeal. If you forgot to ask for leave in your Notice of Appeal, you can file
a Supplementary Notice of Appeal asking for leave to appeal costs. However, you can only file the Supplementary Notice
of Appeal if you have not yet perfected your appeal (see Appendix C).
If your appeal is perfected, you must request leave in your factum and then explain why the costs order should be
changed. See Byers v. Pentex (2003) at: http://www.ontariocourts.on.ca/decisions/2003/january/byersM28623.htm
If you decide to appeal only the costs order and not the main judgment, then you must make a Motion for Leave to
Appeal. The rules governing motions for leave to appeal are in Rule 61.03.1. It is important to make sure that you are
appealing to the right court (see Chapter 1). Generally, you appeal a costs order to the same court to which you would
have appealed the trial judgment. If you are unsure, you should seek legal advice.
A motion for leave to appeal is made in writing; there are no oral arguments. You must file a Notice of Motion stating
that you intend to ask for leave to appeal. Next, you must file a factum requesting leave to appeal the costs order from
trial and explain why your appeal should be granted. In your Notice of Motion and your factum, you should also ask the
Court of Appeal to award to you your costs for the motion.
To win an appeal on costs, you must show that the trial judge based the decision on the wrong legal principle. This
standard is higher than the regular standard for appeal: you have to show that the trial judge made a material and
obvious mistake and was not considering the right factors. Costs appeals usually fail. If you lose the appeal, you will
probably have to pay the cost of the appeal and of the motion for leave to appeal. Talk to a lawyer before you decide to
take this risk to see whether you could win.
6. How do I present my case in court?

EACH COURT HAS ITS OWN rules about how oral argument works. You will receive a letter from the court confirming
the date and time for your appeal. The letter will state how long you have toargue your appeal. Come to the court early
and sit on a bench at the back. When it is your turn, move to the front of the room so the judges can see and hear you.
Three judges will hear your appeal. You must stand up when the judges enter and exit the room and every time you
speak. You should call the judges Justice X, Justice, or Your Honour. The senior judge sits in the middle; the junior
judge sits to the senior judges left (your right).
20
The appellant goes first and the respondent goes second. The appellant will usually stand on the right side of the
courtroom and the respondent will stand on the left, facing the front. The Crown always stands on the right.
Use Your Time Wisely
You will have a time limit for your oral arguments. It is very important not to go over your limit. If you need more time,
ask the judges for it at the beginning of your argument. They may refuse. To stay within your time, you should focus on
the question:
Appellant: How did the trial judge err?
Respondent: Why was the trial judge correct?
Practice your argument to make sure you will stay within the limit. The judges will stop you to ask you questions so do
not plan to speak for the entire time. Do not be discouraged if the judge interrupts to ask questions. Oral argument
exists to help the judge understand your arguments. Listen to the question, take a moment to think of the answer, and
answer briefly.
The judges have read the materials for the case. They are familiar with the facts, the decision of the trial judge, and your
factum. The judges also know the law, so simply explain how the law applies to your case.
If you are run out of time, say that you will rely on the arguments in your factum for any point that you do not have time
to address.
The Facts on the Facts
The Court of Appeal usually accepts the facts as the trial judge found them. You should try to rely on the facts as the trial
judge found them. However, if you can show that the trial judge made an obvious mistake or failed to review the
evidence, then you will have shown a legal error.
Because the Court of Appeal is not a place to re-examine the facts, you should only bring up facts that you think the trial
judge misunderstood or failed to consider. You cannot rely on new evidence or facts without asking the courts
permission in a motion to admit fresh evidence.
Keep in mind that if the trial judge found one version of the facts, it is extremely difficult to have the Court of Appeal
make a different decision about a particular version of the facts. See Mistakes of Fact page 14. Make sure that you
focus your argument on the law and not just on the facts.
What Not To Do
Do not use your time to talk about less important arguments; focus on the most important arguments.
Do not go over all the facts because the judges read the material. Highlight the facts that support your
argument.
Do not read your factum because the judges read it already.
Do not behave rudely and do not lose your temper. Lawyers refer to each other as my friend and to everyone
else as Mr. or Ms. X.
21
Remember, three really good ways to lose credibility are to be too argumentative, too adversarial, and too long.
The Appellants Argument

THE OPENING
Start with one sentence explaining the context of the appeal, such as This is an appeal from a divorce judgment.
Explain in one sentence the decisions of the lower courts. Then give the judges a map or summary of your arguments.
This makes it easier for the judges to focus on what is important.
A good road map is: In my argument I will show the trial judge erred in two/ three/ four ways. Then list the errors.
Finish your opening by stating what remedy or order you are asking for.
THE ISSUES
Start with your strongest argument. In each argument review the important facts and law. Then apply the law to the
facts, and state your conclusion.
Review the Facts
The judges have reviewed the materials and know the facts. You may want to quickly review the parts of the trial judges
decision that you are going to deal with and the facts that are important to the appeal.
Review the Law and Apply It to the Facts
This is the meat of your argument. You do not need to do a long review of the law. Rather, use your legal research to
show how you think the trial judge erred. You should also comment on any cases you found.
Make sure that the judges have a copy of the case and highlight which part of the case relates to your case. The case
should be in your Book of Authorities. If it is not, then you must give copies to the Registrar to hand up to the judges.
You must also give copies to the other lawyers.
THE CONCLUSION
Plan your last sentence so that it gives a strong final message. You can simply list again the ways in which you think the
trial judge erred and state the order that you want the court to make. Do not be discouraged if you do not get to the
conclusion. Oral argument exists to let the judges ask you questions about the problems they see with your argument.
The Respondents Argument

The purpose of the respondents argument is to respond to the appellants arguments. You must show why the trial
judge was correct. You should respond to the appellants factum; do not make up answers on the spot. You should listen
to what the appellant says and put your emphasis on the same issues that the appellant emphasizes.
The structure of the respondents argument is the same as the appellants: you need an opening, a discussion of the
issues, and a conclusion.
22
You should always leave time for questions from the judges. You should never argue that the appellant is a bad person
or company.
The Appellants Reply
After the respondent has spoken, the appellant will have five to ten minutes to respond to what the respondent has
said. The reply is important to the appellants argument because it lets the appellant contradict any facts that the
respondent got wrong or to argue against a new argument raised by the respondent. You cannot raise any new points in
the reply.
Be careful. You want to leave the judges with a positive impression of your argument. Do not reply just for the sake of
replying. Make sure you have something important to say in response to the respondents argument.
Civility and Politeness
The way you behave is very important. You will get your point across more effectively if you are polite and respectful to
the judges and the other party, and you stay within your time. Try and answer the judges questions in a straightforward
and direct way. This is not a court where the parties are confrontational or argumentative. If you would like further
tips on arguing your case you may want to read the following articles, available in most law libraries:
Binnie, Ian, In praise of oral advocacy (Spring 2003) 21 Advocates Soc. J. No. 4, 318.
Catzman, Marvin, The wrong stuff: How to lose appeals in the Court of Appeal Summer
2000) 19 Advocates Soc. J. No. 1, 15.
Catzman, Marvin, The wrong stuff: Tip 8 (Summer 2002) 21 Advocates Soc. J. No. 1, 12.
Catzman, Marvin, Losing tip no. 14: Openers and closers (Autumn 2004) 23 Advocates Soc.
J. No. 2, 2122.
Finlayson, George D., Appellate Advocacy in an Abbreviated Setting (Summer 1999) 18
Advocates Soc. J. No. 2, 2225.
Laskin, John I., What persuades (or, What is going on inside the judges mind) (Summer
2004) 23 Advocates Soc. J. No. 1, 49.
Robins, Sydney L., Appellate advocacy (October 1997) 16 Advocates Soc. J. No. 3, 1115.
Sopinka, John, Appellate Advocacy (March 1992) 11 Advocates Soc. J. No.1, 1620.
23
APPENDIX A
Glossary
Appeal Book: The Appeal Book contains the information that the lower court judge had before him. It makes it easy for
the judges to look at the important information, such as the lower court judges reasons.
Appellant: The appellant is the party bringing the appeal.
Case Law: Courts look at similar cases to help then decide new cases.
Compendium: The Compendium contains the information that is critical to your argument, such as portions of the
transcript or important contracts.
Costs: When a civil case is finished, a judge can order one side to pay the legal expenses of the other side. This payment
is called a costs award.
Factum: A factum is a written document that each party gives to the court that outlines the argument that party will
make. It has a set structure and must include a list of sections. See Appendix B.
Federal Offence: If you have been convicted of a criminal offence, an offence involving drugs, or an offence relating to
income taxes, you have been convicted of a federal offence.
Final Order: Final orders include judgments that hold you responsible for damages or that dismiss the case. In general, if
a decision or a motion brings an action to an end, then it is a final order.
(An) Information: An Information sets out criminal charges against you.
Interlocutory Order: Interlocutory orders are made during the case and do not end the litigation.
Judge: A judge is an officer of the court who presides over a case.
Judgment: The courts final decision about the parties claims resolving the dispute about facts and law.
Justice of the Peace: A justice of the peace is a judge who has jurisdiction over minor criminal offences.
Leave to Appeal: Leave to appeal is permission to appeal.
Master: A judicial official appointed to act as the courts representative.
Misapprehend: A judge misapprehends the facts when he or she does not consider a particular fact or misunderstands
the evidence. If this misunderstanding affected the final decision, then that judge erred.
Motion: A motion asks for an order about a procedural issue, such as admitting fresh evidence, granting leave to
appeal, or granting bail.
Noting Up: Noting up a case requires checking all of the decisions made after that case to see if a court has overturned
it, criticized it, or accepted it.
24
Offer to Settle: An offer to settle is an offer that one party makes to the other party to try to resolve the dispute without
going to court. The offer happens after court proceedings start but before the trial or appeal ends.
Offence Notice: An Offence Notice sets out the charges against you.
Order: An order sets out the instructions that parties must follow.
Party: A party is a person, corporation, or association that is suing someone or being sued in a civil case. In a criminal
case, the parties are the person who is accused of a crime and the Crown.
Provincial Offence: A provincial offence is an offence under the Highway Traffic Act, the Occupational Health and
Safety Act, the Provincial Offences Act, or a Municipalitys By-laws.
Reply: After the respondent has spoken, the appellant has a short time to respond to what the respondent has said.
Respondent: The respondent is the party arguing against the appeal.
Reviewable Error: A legal error or an error of fact that affected the decision. In other words, if the judge had not made
the legal or factual error, the trial judge would not have made the decision that was made.
Secondary Sources: Secondary sources are textbooks or articles that explain the law or some other subject.
Statute: A statute is a law created by the government.
Summons: A summons sets out the charges against you.
APPENDIX B Getting Legal Help with an Appeal

The Appeals Assistance Project, legal clinics, and the lawyer referral service
Appeals Assistance Project
Pro Bono Law Ontario (PBLO) operates the Appeals Assistance Project (AAP). Self-represented litigants apply to PBLO
for assistance and, in appropriate case, PBLO tries to match them with pro bono lawyers. The services provided under
the AAP range from discrete tasks (such as an assessment of the merits of the appeal or assistance with drafting a
factum for a motion or an appeal) to full representation on an appeal or motion. The AAP does not guarantee any
particular type of assistance. The details of any assistance to be provided are to be reached in consultation with PBLO
and the volunteer lawyer. More information can be obtained at www.lawhelpontario.org/appeals, or by calling (416)
597-770 ext. 231.
Regional Clinics
COMMUNITY LEGAL EDUCATION ONTARIO (CLEO)
Address: 119 Spadina Avenue, Suite 600, Toronto, ON M5V 2L1
25
Phone: 416-498-4424
Fax: 416-408-4424
Email: cleo@cleo.on.ca
http://www.cleo.on.ca/
CLEO publishes brochures on the law and legal process. CLEO also has a number of brochures that will help you find
Legal Aid Clinics in your area:
http://www.cleo.on.ca/english/pub/onpub/subject/legal.htm
HAMILTON COMMUNITY LEGAL CLINICS
http://www.hamiltonjustice.ca/LAWYERLOCATE.CA
http://www.lawyerlocate.ca/lawlinks/community.asp
LAW SOCIETY REFERRAL SERVICE
Phone: 1-800-268-8326 or 416-947-3330 (within the GTA) (English)/1-800-268-8326 ou 416-947-3330 (dans la GRT)
(French)
On-line request form: http://lrs.lsuc.on.ca/lsrs/
This service provides a half-hour consultation with a lawyer
LEGAL AID ONTARIO
http://www.legalaid.on.ca/
Legal Aid provides financial assistance to get a lawyer if you qualify under their eligibility criteria, including the area of
law and your income.
VOLUNTEER LAWYERS SERVICE (VLS)
http://www.volunteerlawyers.org
VLS develops, implements, and coordinates strategies to promote pro bono legal services in Ontariot hrough non-profit
and charitable community based organizations. VLS provides pro bono legal assistance, information seminars, a
speakers bureau, and factual resource material.
Specialty Legal Clinics

These legal clinics serve only certain groups of people. If you fit into the service group for one of these clinics, then you
may contact them for help.
26
THE ADVOCACY CENTRE FOR THE ELDERLY (ACE)

Address: 2 Carlton St., Suite 701, Toronto, ON M5B 1J3
Phone: 416 598-2656
Fax: 416-598-7924
http://www.advocacycentreelderly.org/
ACE is a community based legal clinic for low-income senior citizens. ACE provides direct legal services tolow-income
seniors.
AFRICAN CANADIAN LEGAL CLINIC (ACLC)
Address: 18 King Street East, Suite 901, Toronto ON M5C 1C4
Phone: 416-214-4747 or 1-888-377-0033
Fax: 416-214-4748
www.aclc.net/
ACLC addresses systemic racism in Ontario through test case litigation and provides summary legal advice.
ARCH DISABILITY LAW CENTRE
Address: 425 Bloor St. E., Suite 110, Toronto, ON M4W 3R4
Phone: 416-482-8255 or 1-866-482-2724
TTY: 416-482-1254 or 1-866-482-2728
Fax: 416-482-2981 or 1-866-881-2723
Email: archlib@lao.on.ca
http://www.archlegalclinic.ca
ARCH provides free legal information relating to disabilities including: Discrimination, Mental capacity, Education, Estate
planning, Employment, Abuse, Transportation, Immigration, Attendants
ARCH can also refer you to your local community legal aid clinic or to lawyers in private practice, where possible.
BARBARA SCHLIFER CLINIC
Address: 489 College Street, Suite 503, Toronto ON M6G 1A5
Phone: 416-323-9149 ext. 263;
Fax: 416-323-9107
27
TTY: 416-323-1361
Email: ist@schliferclinic.com
http://www.schliferclinic.com/
The clinic offers legal services to women who have experienced partner assault, adult sexual assault, and childhood
sexual abuse. The clinic works in the criminal, family, civil, tribunal, and immigration systems.
THE CHILD ADVOCACY PROJECT (CAP)
Phone: 416-977-4448 ext. 226
Email: info@childadvocacy.ca
http://www.lawhelpontario.org
CAP provides free legal services for at-risk children and youth, including: Representation of young people in education
and disciplinary hearings, Providing advocacy and mediation with school districts
COMMUNITY AND LEGAL AID SERVICES PROGRAMME (C.L.A.S.P.)
Address: Osgoode Hall Law School, York University, 4700 Keele Street, Toronto, ON M3J 1P3
Phone: 416-736-5029;
Fax: 416-736-5564
http://www.osgoode.yorku.ca/clasp/
C.L.A.S.P. is a student legal aid society that helps all low-income people with basic legal problems. It does not require a
legal aid certificate.
DOWNTOWN LEGAL SERVICES (DLS)

Address: Faculty of Law University of Toronto, 655 Spadina Avenue, Toronto ON M5S 2H9
Phone: 416-934-4535
Fax:416-934-4536
Email: law.dls@utoronto.ca
DLS is a student legal aid clinic that helps low-income people with a variety of legal issues. It does not require a legal aid
certificate.
HIV & AIDS LEGAL CLINIC OF ONTARIO (HALCO)
28
Address: 65 Wellesley Street, East. Suite 400 Toronto, Ontario M4Y 1G7
Phone: 416-340-7790 or 1-888-705-8889
Email: talklaw@halco.org
http://www.halco.org/
HALCO serves low-income people with HIV and AIDS (PHAs) in Ontario.
JUSTICE FOR CHILDREN AND YOUTH: CANADIAN FOUNDATION FOR

CHILDREN, YOUTH AND THE LAW
Address: 415 Yonge Street, Suite 1203, Toronto, ON M5B 2E7
Phone: 416-920-1633 or 1-866-999-5329;
Fax: (416) 920-5855
Email: info@jfcy.org
PARKDALE COMMUNITY LEGAL SERVICES (PARKDALE)
Address: 1266 Queen Street West, Toronto, ON M6K 1L3
Phone: 416-531-2411;
Fax: 416-531-0885
http://www.parkdalelegal.org
Parkdale is a community legal clinic on Queen Street West. It provides free legal advice, assistance, and representation
to low-income residents living in the Parkdale and Swansea area.
THE SOUTH ASIAN LEGAL CLINIC OF ONTARIO PRO BONO PROJECT (SALCO)
Address: 45 Sheppard Ave. E., Suite 106A, Toronto ON M2N 5W9
Phone:416-487-6371;
Fax: 416-487-6456
http://www.salc.on.ca/SALCO%20Website/Home%20SALCO.htm
SALCO provides legal services to meet the unique needs of low-income members of the South Asian community in the
greater Toronto area. SALCO provides legal information, advice, representation, education, and advocacy. SALCO
focuses on the areas of immigration and refugee issues, human rights, housing, family law, and discrimination.
29
Appendix C
Filing documents what, how and when
THE RULES OF CIVIL PROCEDURE explain the documents for civil cases. The Court of Appeal for Ontario Criminal Appeal
Rules explain the documents for criminal cases. The civil rules govern if there is no criminal rule. The links for the rules
are in the introduction to this Guide. You can also refer to the Court of Appeal website:
http://www.ontariocourts.on.ca/coa/en/
General Information
FILING
Before you can rely on written material in court, you must file it with the court. Filing means that you give the material
to the Court of Appeal staff at the counter. They examine it to make sure that it is in the correct form. If it is, they
approve and stamp the material, and you pay a filing fee. You must file three copies of the material one for each judge.
The deadlines for filing the documents are:
Case
All
All
Criminal
Civil
All
All
Criminal
Civil
Action
Notice of Motion for Leave to Appeal
Notice of Appeal if leave given
Notice of Appeal
Notice of Appeal
Appellants Appeal Book, Factum, Book of
Authorities*
Respondents Appeal Book, Factum, Book
of Authorities
Transcript (Proof that ordered)
Papers and Exhibits Request
Certificate of Perfection
Criminal
All
Deadline
15 days after the order or judgment that is being appealed
7 days after
30 days after sentencing or order
30 days after the order
30 days after Notice of Appeal OR 60 days after notice that
transcripts are ready
60 days after appellant files all material;
30 days after Notice of Appeal
14 days after Notice of Appeal
30 days after Notice of Appeal OR 60 days after notice that
transcripts are ready
90 days after transcript filed OR 60 days after Notice of Appeal if
no transcript
*The Court of Appeal for Ontarios website states the following:
The Appellants Books of Authorities should be
filed, if possible, with the factum, but if not possible, then not later than Monday of the week preceding the
hearing of the appeal. There is no mention in the Rules of the timing for filing Books of Authorities in an appeal.
IF YOU DO NOT FILE DOCUMENTS ON TIME
If you do not file a document on time, the other party may ask the Registrar to dismiss your appeal
for delay. This happens if you do not meet the deadlines listed above or if 1 year passes from the date of
filing the Notice of Appeal without anything happening.
30
DOCUMENT FORMAT
The materials must be in a particular format. Each book must be cerlox bound (coil bound). Each book should have a
table of contents. The table of contents should state the date of the document as well as its name. Each book should
have consecutive numbers on the top right-hand corner. Everything that you write should be in 12-point font, doublespaced, with 40mm margins, and with numbered paragraphs.
You should separate different documents in the books numbered tabs. The table of contents should state the tab at
which the document is found.
Different books have different colour covers. You must make sure that you have the correct colour cover:
Case
Criminal
Civil
Criminal
Civil
Criminal
Civil
Criminal
Civil
Criminal
Civil
Criminal
Civil
Criminal
Civil
Criminial
Document
Appellants Appeal Book
Appellants Appeal Book and Compendium
Appellants Factum
Appellants factum
Appellants Book of Authorities
Appellants Book of Authorities
Respondents Appeal Book
Respondents Appeal Book and Compendium
Respondents Factum
Respondents Factum
Respondents Book of Authorities
Respondents Book of Authorities
Exhibit Book
Transcripts
Transcripts
Colour
Buff
Buff
Blue
White
Blue
Blue
Grey
Buff
Green
Green
Green
Green
Buff
Red
Red
SERVICE
Service is a specific form of delivery in which you give your material to the other party. In civil cases, Rules 16, 17, and 18
govern service. You must file proof of service with the court staff when you file your material. It should either be an
affidavit of service or an admission of service.
In criminal cases, Rule 5 governs service of the Notice of Appeal. Rule 18 governs service of the certificate of
perfection.Usually, the notice of appeal must be served within 30 days of the order appealed from. However, different
statutes have different deadlines. For instance, the Family Law Act requires service within 15 days of the order.
MOTIONS FOR LEAVE TO APPEAL AND IN OTHER CIRCUMSTANCES
Parties bring motions when they need the court to make an interim order. For example, an interim order can give a
party an extension on a deadline. To start a motion, you must file a Notice of Motion.
31
In some cases, you must bring a motion for leave to appeal before you can start your appeal (see Leave to Appeal page
5). Rule 61.03.1 governs motions for leave to appeal in civil cases. To start this process, you must file a Notice of Motion
for Leave to Appeal. The appellant and respondent must file factums, transcripts, authorities, and exhibits, if necessary.
In most criminal cases, leave to appeal is dealt with at the same time as the appeal. Therefore, you simply file the Notice
of Appeal.
Starting an Appeal: The Notice of Appeal
Every appeal starts with a Notice of Appeal. In criminal cases, the Notice of Appeal is Form B in the Court of Appeal for
Ontario Criminal Appeal Rules. You must file three copies. You do not need to serve the Crown with the Notice of Appeal
because the court will do it for you. In civil cases, the Notice of Appeal is Form 61A in the Rules of Civil Procedure. You
must serve the other parties. If you do not file your Notice of Appeal before the deadline, you can bring a motion for an
order extending the deadline. In civil cases, you can also get the respondents written consent to file a late Notice of
Appeal.
Appeal Book/Appeal Book and Compendium
An Appeal Book contains the documents created for the lawsuit that were before the lower court. If you want to add
new material, you must bring a motion to add fresh evidence. A Compendium contains portions of the non-lawsuit
documents that are important, such as contracts.
Every Appeal Book must contain the Notice of Appeal, a copy of the order granting leave to appeal, and any other order
related to the appeal. Appeal Books must also have a copy of the order and the reasons for the order that is being
appealed, unless the reasons are in the transcript.
If the appeal involves a constitutional question, the appeal book should contain a copy of the Notice of Constitutional
Question with proof of service to the Attorney Generals of Ontario and Canada (see Constitutional Questions page 41).
If there is an agreed statement of facts, it should be in the appeal book. The last documents of the appeal book should
be the certificate of perfection and the certificate of completeness. In a criminal appeal, if the accused person is
unrepresented, the Crown prepares the appeal book.
In civil cases, the appellant must prepare an Appeal Book and Compendium in one volume. This book contains
everything that an Appeal Book contains. It also has excerpts of the documents, transcripts, and exhibits that you refer
to in your factum. The respondent does not need to prepare an Appeal Book but should prepare a Compendium with
the documents referred to in the factum.
Factum
The factum states the facts and outlines the partys legal arguments. It must be shorter than 30 pages. There is a sample
civil factum in Appendix D, which fully explains the requirements.
An appellants factum has four parts in criminal appeals and five parts in civil appeals. The first part has one or two
paragraphs stating your name and the names of the other parties, the court, judge, date of the order you are appealing
from, and the nature of that order. In a criminal case, you should state the charge and whether you are appealing from
32
the conviction, sentence, or both. If you are only appealing your sentence, your factum must be in Form D. In civil
appeals, there is a short overview of the nature of the case and the issues as well (it is a separate part).
The next part has a short summary of the relevant facts, with references to transcripts and exhibits if necessary. The
following part has a statement of each issue followed by your argument with references to the case law and statutes.
The final party contains a statement of the order that you are asking for, including any costs.
A respondents factum is similar to an appellants factum. The factum should start with a brief overview of the case. The
factum should then list the paragraph numbers in the appellants facts that you agree with, disagree with, and have no
knowledge of, as well as a short summary of any additional relevant facts. Note that in a civil case, the overview and the
facts are divided into two parts.
The next part contains a statement of the respondents position on each issue. The following part lists any additional
issues that the respondent wants to raise. The final part states the order that you are asking for.
Factums also have two schedules. Schedule A is a list of the authorities referred to in the order in Chapter 3. Schedule B
contains the text of all relevant portions of statutes, regulations, and by-laws, other than the Criminal Code and the
Youth Criminal Justice Act.
In civil factums, the parties must also include a certificate stating that an order under subrule 61.09(2) exists or is not
required, and the amount of time in hours that you think that you will need for your oral argument, not including reply.
These statements should come before the signature.
Book of Authorities
A Book of Authorities contains all of the cases that support the legal arguments you make in your factum. You must
highlight the passage you want the judges to read either with a highlighter or with a think black line beside the
important paragraph.
You should file your Book of Authorities at the same time as the factum. You can also file a joint casebook if the parties
agree. A joint casebook is one casebook that both parties agree to.
Transcripts
If you already have a transcript of the trial, you can file that transcript with the rest of your material. If a transcript is
needed, within 15 days of filing the Notice of Appeal you must file proof that you ordered the transcript.
The court reporter will usually require payment for the transcripts before giving you a Court Reporters Certificate. Each
day of evidence will cost between $500 and $1000.
Exhibits
In civil cases, parties prepare exhibit books. These books contain the exhibits entered at trial. It is an emergency
reference because everything that you intend to refer to should be in the Appeal Book and Compendium. Because it is
for emergencies only, you only need to file one copy. It should have a table of contents, the affidavit evidence,
transcripts, and then the exhibits filed at the hearing.
33
In criminal cases, if there are any original papers or exhibits that the Court of Appeal must consider you must file an
Original Papers and Exhibits Request within 14 days of the Notice of Appeal.
The appellant must file two copies of a certificate of perfection after filing all of its materials. Once you have filed this
certificate, you have perfected the appeal, which means that the court can set a date to hear the appeal.
You must file the certificate of perfection within 90 days of filing the transcripts or, if there are no transcripts, within 60
days of filing the Notice of Appeal. There is a filing fee.
The certificate of perfection must state that the appeal book, transcripts, and appellants factum have been served and
filed. In criminal cases, it must state the estimated total length of time needed for oral argument. Finally, it must state
the name, address, and telephone number of the respondent or of his or her lawyer. In civil cases, it must also state
name, address and telephone number of every party to the appeal.
If you do not perfect the appeal on time, the Crown, the other party, or the Registrar can put your case in front of a
panel of the court to speak about the lack of perfection. You may also be required to attend Status Court if perfection is
delayed. There you must show that you pursued the matter diligently.
If you cannot, through no fault of your own, perfect the appeal on time, you have two options. You case ask the Crown
or other side for written consent to an extension of time or you can bring a motionasking for an extension of time to
perfect the appeal.
Constitutional Questions
If you intend to raise a constitutional issue on appeal, it must have been argued in the lower court, after either you or
the other party provided a Notice of Constitutional Question to the Attorney General of Canada and the Attorney
General of Ontario. This notice is required by s. 109 of the Courts of Justice Act. A sample Notice of Constitutional
Question is set out as Form 4F in the Rules of Civil Procedure. If you or the other party did not raise the constitutional
issue in the lower court through this procedure, the Court of Appeal may not hear your constitutional challenge on
appeal. It must be noted, however, that there are times when a lower court will have heard allegations of Charter
breaches, in a criminal case, for example, when a Notice of Constitutional Question has not been filed. Again, this
allegation must have been heard by the lower court in order to be entertained by the Court of Appeal.
Appendix D
Writing your factum for civil appeals
Introduction: Why Your Factum is Important
The factum is the most important document you will file in your appeal. Your success in convincing the court of your
position begins with the factum and rests on it throughout the appeal. The factum may leave the judges with an initial
impression of what your appeal is about and with a lasting impression of how it should be decided.
34
When you write your factum, you should focus on clarity and readability. You are explaining your case to judges. It is
important to start with the basics and at the beginning of the story.
Below are some hints on effective factum writing, as well as an example of how a factum should be organized. To make
sure that your factum complies with the rules, you should consult a lawyer. We also recommend that you read an article
by Justice John I. Laskin on how to write a persuasive factum. It is available on the Court of Appeal website at:
http://www.ontariocourts.on.ca/coa/en/ps/speeches/forget.htm
When writing your factum, DO:
Read the applicable Rules of Civil Procedure before you begin writing
Set out your facts and legal arguments in clear, concise language
Stick to the page limits and other technical requirements the Court office will not accept factums that do not
comply with these rules
Use headings to separate the different sections and arguments
Make sure your cover page and back pages are the right colour
File an electronic factum along with your printed material see:
http://www.ontariocourts.on.ca/coa/en/notices/adminadv/ef.htm
Under each ground of appeal explain the specific errors you think the trial judge made
Use a spell check and a grammar check when you are finished writing
When writing your factum, DO NOT:
Do not use inflammatory, offensive or insulting language

Do not use overly formal language
Do not use fancy fonts or page dividers
Formal requirements
For civil appeals, the Rules of Civil Procedure require that factums be in the prescribed form and not more than 30 pages
in length. You should refer to Rule 61.11 and Rule 61.12 to find the requirements. The factum begins with a cover page.
A sample is set out below. The top right corner must contain the Court of Appeal file number. Insert the names of the
plaintiff and defendant and indicate whether they are the appellant or the respondent on the appeal. The case name is
repeated on the first page of the factum (as shown below). All of the paragraphs in the factum must be numbered.
35
SAMPLE COVER PAGE

Court File No. C#####
COURT OF APPEAL FOR ONTARIO
B E T W E E N:
PLAINTIFF NAME
Plaintiff
(Appellant/Respondent)
- and DEFENDANT NAME
Defendant
APPELLANTS/RESPONDENTS FACTUM
Name of the Party filing the factum

Contact Information of the Party
TO:
Name of opposing lawyer or party
Contact information of opposing lawyer or party
SAMPLE PAGE 1 FOR APPELLANTS FACTUM

B E T W E E N:
PLAINTIFF NAME
Plaintiff
Defendant
APPELLANTS FACTUM
PART I (appellant): Statement identifying the appellant, the court appealed from, and the judgment appealed from.
36
If you are an appellant, Part I should contain a short statement that identifies you, the court or tribunal being
appealed from (including the name of the judge), the date of the judgment appealed from, and the result of the
case at trial (who won or lost, what the damages awarded were, and whether interest and costs were awarded).
This is one of the most important sections because it introduces the reader to your case and sets the tone for
the rest of the factum. This section should also contain a short statement on what is being appealed. For
example:
1.
The Appellant Jill Hill (Jill) is the defendant in an action brought in the Superior Court of Justice for negligence. At trial,
the Honourable Justice M. Goose awarded $30,000 in damages to the plaintiff Jack Hill (Jack). The trial judge also awarded
costs of $15,000 and prejudgment interests of $7,000. Ms. Hill now appeals from this ruling.
PART II (appellant): Concise overview statement describing the nature of the case and the issues on appeal.
For an appellant, Part II is similar to Part I of a respondents factum. Part II is a short overview of the case that
clearly sets out the issues that the court must decide. If there are multiple issues, it is helpful to set them out in
a numbered list. The overview should be brief and fairly basic. For example:
2.
Jack, the plaintiff, sued Jill for negligence after he was injured while fetching a pail of water on Jills property. The plaintiff
alleges that Jill was negligent in maintaining the area known as the Hill, and, specifically, the area around the well. The
plaintiff alleges that Jill had a duty to safely maintain her property, and that this duty extended to Jack who was sent up the
hill at her request, and whose injuries were reasonably foreseeable to Jill given the state of repair of the Hill and of the well.
3.
The defendant says that the learned trial judge erred in:
a)
Finding that Jill Hill caused the injuries to the plaintiff, Jack Hill; and
b) Finding that Jill Hill had failed to meet the standard of care in maintaining the Hill and the area around the well.
PART III (appellant): Statement of the facts relevant to the appeal.
This part should contain a concise summary of the facts. You are dealing with judges who have not previously
heard your case. It is important to tell the facts in an order that will help the reader understand what happened.
However, it is also important to remember that facts must be relevant to the case. You may think that
the trial judge made an unfair decision at the trial. This is not a fact. You may think that the other party is an
idiot. This is also not a fact. Commenting on members of the legal system or the other parties in a case will not
win you any sympathy from the judges.
You should approach this section by reviewing the reasons of the judge from the lower court. Often, the
judge will have summarized the relevant facts or made findings of fact.
Try to present the facts in an impartial manner. Dont misstate the facts or leave out facts that might be
damaging to your argument. However, only facts that are relevant to the issues should be included. For
example:
37
4.
On June 4, 2000, Jack visited his sister, Jill. She had asked him to come to help her fetch some water from the well behind her
house. Jill had been ill and was not feeling strong enough to fetch the water herself.
5.
Jack agreed to fetch several pails of water. The well is behind Jills house, at the top of a small hill. The well is approximately
50 metres uphill from the house. There is a flagstone path from the rear door of the house to the well. The path is quite
overgrown in some areas. Approximately 30 metres from the house, the path becomes very steep. It remains very steep for 15
metres, and then evens out again at the top of the hill.
6.
Jack and Jill took two buckets and climbed the hill. They had some difficulty navigating the path because of the overgrown
paving stones. Jack told Jill that it was getting dangerous on the steep parts of the path and that someone could trip over the
weeds that had grown there. He told her that she needed to have someone clean up the path for safety reasons. Jack told Jill to
wait for him at the point when the path became steeper because he was worried that she shouldnt be climbing the difficult
path while she was still ill. Jack took both buckets and climbed to the top of the hill without incident.
7.
Jack filled the buckets at the well and balanced them on his shoulders. He then proceeded down the path. Shortly after he
began descending the steepest part of the hill he twisted his ankle and fell down the hill. Jill clearly saw the area of the path
where Jack twisted his ankle, and noticed that it had no overgrowth. Jack rolled approximately 40 metres down the hill before
coming to a stop against a bush.
8.
Jill saw Jack tumble down the hill and raced after him, hoping to help. In her haste, she tripped on the overgrowth around the
path and also fell down. She rolled approximately 15 metres down the hill before being able to stop herself, and was not
seriously injured.
9.
Following the fall Jack was disoriented and ran into the house. He found a roll of brown paper and some vinegar in the
kitchen. He doused the brown paper with vinegar, and wrapped it around his head. Jill recovered quickly from her fall and
followed Jack into the kitchen. When she arrived, he had brown paper wrapped several times around his head. She
immediately called the paramedics who took him to the hospital.
10. Jack suffered multiple scrapes and bruises, and a serious head injury. There was significant blood loss from a large cut in his
head. It became apparent that Jack had also suffered brain damage. As a result, he was unable to complete his university
education where he had been studying to be a water management specialist. He has impaired motor function in his right arm
and leg and requires the help of a daily nurse. His quality of life has diminished significantly.
11. Jack brought an action against Jill for damages stemming from the incident, and for his medical and nursing costs and loss of
future income. He was successful at trial.
12. In her reasons, Goose J. held
PART IV (appellant): statement of each issue raised, immediately followed by a concise argument with reference to the law
This part should contain a statement of each issue you are raising immediately followed by your argument on
that issue (a respondent then responds to these same issues in Part III of the respondents factum). You have
38
already set these issues out under Part II of the appellants factum when you stated how you think the trial
judge erred.
This section of a factum is the most difficult. It is where you make legal arguments and refer to the law
and authorities in making these arguments. For example:
13. There are two issues on this appeal:
a)
Did the trial judge err in finding that Jill caused the injuries to the plaintiff, Jack?
b) Did the trial judge err in finding that Jill failed to meet the standard of care in maintaining the Hill and the area
around the well?
ISSUE 1: Did the trial judge err in finding that Jill caused the injuries to the plaintiff, Jack? Immediately after stating the issue, you
should give a one-paragraph answer to the question that outlines your position. For example:
14. The appellant submits that the trial judge erred in finding that Jill caused Jacks injuries. It was an accidental twist of his
ankle, and not her negligent maintenance of the property, that caused his injuries.
Then continue your argument, making references to case law where necessary. For example:
15. The trial judge erred in awarding damages to the plaintiff because the plaintiff could not show that the negligence of the
defendant caused the plaintiffs injuries. In order to justify an award for damages against Jill, Jack must show that her
negligence is responsible for his injury.
Cite relevant authorities

16. The most common expression of causation is the but for test. In this case, it cannot be said that but for Jills failure to
maintain the path by keeping it free from overgrowth, Jack would not have been injured.
Cite relevant authorities

17. Jacks injuries were caused because he twisted his ankle. He did this in an area of the path that was clear of overgrowth. He
did not stumble because of the state of repair of the path, but simply because of an accidental twist of his ankle. Regardless of
the state of repair of the path, Jack would have twisted his ankle in the exact same way.
18. The trial judge erred in awarding damages to Jack absent any causation on the part of Jill. Jacks injuries, though unfortunate,
cannot be attributed to Jills maintenance of the pathway.
Part V (appellants): Order requested
For both the appellants and respondents Part V should contain a statement of the order being requested
including costs. For example:
39
19. The appellant respectfully requests the following orders:

a)
An order dismissing Jacks claim for negligence;
b) Costs of this appeal and the trial below; and

c)
c) Such further relief as counsel may advise and this Honourable Court deems just.
You must then sign below:

________________________________
Your Name
Address & Phone Number
Appellant
On the next page, you must include a certificate certifying the following: (a) whether an order under rule
61.09(2) is required or has been obtained, and (b) the amount of time required to present oral arguments. An
example is:
CERTIFICATE
20. I hereby certify that an order under subrule 61.09(2) (original record and exhibits) is not required.
21. Counsel for the Appellants will require 30 minutes.
Dated at __________ Ontario this ___ day of ______ 2005.
________________________________
Your Name
You must also include two schedules:
Schedule A containing a list of the authorities referred to
Schedule B containing a list of all relevant provisions of statutes, regulations and by-laws, followed by the text of those
provisions.
40
SAMPLE PAGE 1 FOR RESPONDENTS FACTUM

B E T W E E N:
PLAINTIFF NAME
Plaintiff
Defendant
RESPONDENTS FACTUM
PART I (respondent): Concise overview statement
Part I should contain a short overview of the case and the issues. The appellant will appeal a specific part of
the judgment for a specific reason. You must respond to the appellants argument. For example:
1.
The appellant appeals the judgment of the Honourable Justice M. Goose dated January 14, 2004, in which she awarded
$37,000 in damages and $15,000 in costs to Jack. The appellant argues that the trial judge erred in finding that she was
negligent in maintaining her property and that this negligence caused the injuries sustained by the plaintiff.
2.
This appeal should be dismissed. The trial judge correctly applied the law in finding that Jill owed a duty of care to Jack, and
that she fell below the standard of care in maintaining the Hill.
PART II (respondent): Statement of the facts agreed upon, facts in dispute, and additional facts as required.
This part should contain a statement of the facts from the appellants factum that the respondent agrees with
and disagrees with. For example:
3.
The respondent agrees with the facts outlined in paragraphs 3 to 7 of the appellants factum. The respondent disagrees with
the facts outlined in paragraphs 9 and 10 of the appellants factum.
The respondent may also have to include relevant facts that the appellant did not include.
PART III (respondent): Statement of the position of the respondent with respect to each issue raised by the appellant, immediately
followed by a concise argument with reference to the law
41
This part is a response to the issues raised by the appellant. The respondent generally argues in favour of the
trial judges ruling. The easiest way to do this is to match the appellants factum point by point.
PART IV (respondent): statement of any additional issues raised by the respondent, the statement of each issue to be followed by a
concise argument with reference to the law
This part should contain any new issues being raised by the respondent. The format would be the same as Part
IV for the appellant. Set out any issue clearly followed by a concise argument of your position.
Part V (respondent): Order requested
Part V should contain a statement of the order being requested including costs. For example:
15. The respondent respectfully requests the following orders:
a)
An order dismissing this appeal;
b) Costs of this appeal and the trial below; and

c)
Such further relief as counsel may advise and this Honourable Court deems just.
You must then sign below:

________________________________
Your Name
Address
Phone Number
Respondent
On the next page, you must include a certificate certifying the following: (a) whether an order under rule
61.09(2) is required or has been obtained, and (b) the amount of time required to present oral arguments. For
example:
CERTIFICATE
16. I hereby certify that an order under subrule 61.09(2) (original record and exhibits) is not required.
17. Counsel for the Respondent will require 30 minutes.
Dated at __________ Ontario this ___ day of ______ 2006.
________________________________
Your Name
42
You must also include 2 schedules:
Schedule A containing a list of the authorities referred to

Schedule B containing a list of all relevant provisions of statutes, regulations and by-laws followed by the text of
those provisions
Appendix E
A guide to inmate appeals
ONCE A MONTH the Court of Appeal hears appeals by inmates convicted of criminal offences. Every two months, three
judges of the Court travel to Kingston to hear appeals submitted by inmates in the Kingston area. Inmate appeals follow
a special procedure that does not have many of the requirements and rules that govern other appeals.
Getting Help with your Appeal Although there is an informal appeal procedure available for inmates, they are
encouraged to seek assistance in preparing and arguing their appeals.
Legal Aid Ontario can assist with paying for legal representation if your appeal meets their criteria. Legal Aid
Ontario can be contacted at 1-800-668-8258 and (416) 979-8669 (fax). If you do not qualify for legal aid, duty counsel
lawyers will be present in court on the day your appeal is argued. These lawyers can help you to argue your appeal.
The Queens University Faculty of Law in Kingston has a Correctional Law Program that can help inmates with
writing their appeal materials. The Program can be contacted at (613) 533-6505 and (613) 533-6639 (fax).
What Can You Appeal?
Like anyone convicted of a criminal offence, inmates can appeal from their convictions, their sentences, or both. Refer to
the earlier sections in this handbook for a discussion of how to identify what can be appealed.
When Must You Appeal By?
When the appeal is from the conviction, the sentence or both, the notice of appeal must be served within 30 days after
sentencing. You can also request an extension of time by describing why an extension is necessary in the space provided
on the Form A Notice of Appeal.
How Do You Appeal?
An inmate wanting to appeal to the Court of Appeal should ask prison officials for a form of Notice of Appeal in Form A.
Form A requires basic information including the name of the judge who gave the judgment being appealed, the
offence(s) the inmate was convicted of, the date of conviction, the date of sentence, the sentence imposed, and the
name and address of the institution where the inmate is in custody. Prison officials will submit this form to the Court
Registrar.
43
On the form, you must describe whether you are appealing from sentence, conviction, or both. You must also
state your grounds of appeal. Although the inmate appeal process is designed to be simple, it will help you if you can
identify clear legal grounds of error that led you to appeal your conviction or sentence.
You will have the opportunity to either argue your case in person or in writing. Your choice must be indicated on
Form A. If you choose to appeal in writing, you will receive a report prepared by the trial judge that summarizes the
relevant facts of the case. You will also receive all relevant transcripts.
You then have 2 weeks to prepare your written arguments. If the appeal proceeds, you will also have the chance
to reply in writing to arguments made by the Crown in response to the appeal. The judges of the Court of Appeal will
provide written reasons of the final judgment.
If you choose to present your case in person, after the Form A has been filed, the Crown will prepare an Appeal
Book. The Appeal Book will include the notice of appeal, the information or indictment, any pre-sentence report or
criminal record, relevant transcripts and any other material necessary to assist the judges in hearing the appeal. The
inmate will receive one copy of the Appeal Book prior to the date of the hearing.
If you appeal in writing, your written argument is your only chance to persuade the court to allow your appeal. If
you go in person, the court can ask you questions. You can use your answers to persuade the court to grant your appeal.
Another advantage of appearing in person is that you may have access to duty counsel, a lawyer who will help you on
the day of your appeal. Duty counsel can help you to answer questions or address legal questions. An electronic copy of
Form A and the complete Court of Appeal for Ontario Criminal Appeal Rules can be accessed at:
http://laws.justice.gc.ca/en/C-46/SI-93-169/80594.html
44
Bringing or Responding to an Appeal?

Cant afford a Lawyer?
Maybe we can help.
Call the Appeals Assistance Project today at
416-597-0770 x 200 and find out whether you
qualify

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3. How do I build my argument? ............................................................................ 9

4. How do I do legal research? ..............................................................................14

6. How do I present my case in court? ..................................................................20

APPENDIX B Getting Legal Help with an Appeal ..................................................25

Should I appeal to the Court of Appeal or to a different court?

2. Should I appeal to the Court of Appeal or to a

The Superior Court of Justice is divided into four parts:

Some cases must be appealed to the

Criminal Appeals: Federal Offences or Provincial Offences

PROVINCIAL OFFENCES (See Flow Chart A)

The Highway Traffic Act

Federal Offences (See Flow Chart B)

APPEALING FINAL ORDERS (See Flow Chart D)

A judge has made an order for less than $50,000

How do I build my argument?

Building Your Written and Oral Argument

Mistakes applying a statute

Mistakes Applying a Statute

4. How do I do legal research?

How To Do Legal Research

(click on Statutes by Title)

5. What are the risks of appealing a case? What are

How Costs Work at the Court of Appeal

Legal Rules About Costs

If the case raises important issues without clear answers.

The partial indemnity scale

PARTIAL INDEMNITY COSTS

SUBSTANTIAL INDEMNITY COSTS

6. How do I present my case in court?

The Appellants Argument

The Respondents Argument

APPENDIX B Getting Legal Help with an Appeal

Specialty Legal Clinics

THE ADVOCACY CENTRE FOR THE ELDERLY (ACE)

DOWNTOWN LEGAL SERVICES (DLS)

JUSTICE FOR CHILDREN AND YOUTH: CANADIAN FOUNDATION FOR

*The Court of Appeal for Ontarios website states the following:

The Appellants Books of Authorities should be

When writing your factum, DO NOT:

Do not use inflammatory, offensive or insulting language

SAMPLE COVER PAGE

Name of the Party filing the factum

SAMPLE PAGE 1 FOR APPELLANTS FACTUM

Cite relevant authorities

Cite relevant authorities

19. The appellant respectfully requests the following orders:

An order dismissing Jacks claim for negligence;

b) Costs of this appeal and the trial below; and

You must then sign below:

You must also include two schedules:

Schedule A containing a list of the authorities referred to

SAMPLE PAGE 1 FOR RESPONDENTS FACTUM

An order dismissing this appeal;

b) Costs of this appeal and the trial below; and

You must then sign below:

You must also include 2 schedules:

Schedule A containing a list of the authorities referred to

Bringing or Responding to an Appeal?

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