APPEALS IN THE PERSONAL INJURY CONTEXT

Transcription

1 at The Middlesex Law Association's Presented Annual Personal Injury Conference Sixth by: Andrew C. Murray Submitted LLP Lerners & Solicitors Barristers Box 2335 PO APPEALS IN THE PERSONAL INJURY CONTEXT December 5, 2012 London ON N6A 4G4 Phone:

2 in Arbitration Context 10 Appeals of Review 11 Standard Alone Trial 11 Judge Trial 12 Jury 24 Bibliography "A" Statutes Tab A Schedule INDE X Overview 1 The Starting Point- Courts of Justice Act 1 Ru/es of Civil Procedure 3 A Brief Word About Costs 8 Tort Action Non-Jury 9 Accident Benefit Appeals 10 Judicial Review of a FSCO Decision 13 Standard of Review Chart 13 Practice Points Jury Trial Appeals 14 Recent Personal Injury Appeal Decisions Illustrating Points 15 Martin v. Fleming 15 Zurek v. Ferris 16 Parris v. Laidley 16 Edwardson v. Hamilton (St. Joseph's Hospital) 17 Duchesne v. St. Denis 18 Pastore v. Aviva Canada Inc 18 Hamman v. Usher 20 Hurst v. Aviva Insurance Company 21 Notice of Appeal- Form 1 Tab B

3 The practice of personal injury law, although part of civil litigation in general, has become a very practices are restricted to defence of personal injury lawsuits. Increasingly, plaintiff lawyers dedicate ir practices exclusively to plaintiff personal injury litigation. The specialization of bar and practice of personal injury law extends equally to appeals which might flow from a personal injury case. While appeal process is generic in a sense, applying to all forms of civil litigation, re are specific issues more common to appeals that arise in personal injury 1. Review appeals in tort actions, both with and without juries; 2. Review appeals that arise within context of claims for statutory accident benefits; Briefly address issue of appeals from costs awards, as costs are sometimes tail 4. In passing, mention appeal issues unique to personal injury landscape. Part VII of Courts of Justice Act ("CJA") deals with court proceedings. Sections 132, 133, and 134 specifically address appeals. Section 132 is not controversial; it provides that a judge shall not sit as a member of a court Section 134 broadly describes various powers that may be exercised on appeal: OVERVIEW specialized area of practice. Defendants are represented almost exclusively by lawyers whose context. To that end, this paper intends to: that wags dog; and THE STARTING POINT- COURTS OF JUSTICE ACT hearing an appeal from his or her own decision. Courts of Justice Act, R.S.O. 1990, c.c.43, as amended

4 ability to make any Order or decision that ought to or could have been made by court or tribunal appealed from; ordering a newtrial; quashing of appeal; draw inferences of fact from evidence; receive furr evidence on appeal; direct a reference or trial of an issue. a final order of a judge of Superior Court of Justice, except an order Divisional Court under anor Act; of court. R.S.O. 1990, c. C.43, s. 6 (1); 1994, c. 12, s. 1; 1996, c. 25, s. 9 (17). -2- It is also important to remember that jurisdiction of appeal courts is established in CJA. With respect to jurisdiction of Court of Appeal, Section 6 provides, in part, as follows: 6.(1) An appeal lies to Court of Appeal from, (a) an order of Divisional Court, on a question that is not a question of fact alone, with leave of Court of Appeal as provided in rules of court; referred to in clause 19 (1) (a) or an order from which an appeal lies to (c) a certificate of assessment of costs issued in a proceeding in Court of Appeal, on an issue in respect of which an objection was served under rules Part of CJA deals with Court of Appeal in general and should be consulted, as may be necessa.

5 Part II of CJA deals with Court of Ontario, including Divisional Court. Section 19(1) Court from, subsections (1.1) and (1.2); s. 3. heard in region where decision appealed from took place (unless parties agree orwise or Chief Justice of Superior Court orders orwise). Appeals involve a tango between CJA and Rules of Civil Procedure where each takes a arranged to be argued at a local courthouse, heard by single judge of Court of Appeal in Toronto, with parties hooked in via a video link. -3- maps out jurisdiction of Divisional Court, providing that an appeal lies to Divisional (a) a final order of a judge of Superior Court of Justice, as described in an interlocutory order of a judge of Superior Court of Justice, with leave as provided in rules of court; (c) a final order of a master or case management master. 2006, c. 21, Sched. A, For appeals filed on or after October 1, 2007, jurisdiction of Divisional Court referred to in Section 19(1)(a) of CJA relates to a final Order of not more than $50,000.00, exclusive of costs. We all know that Court of Appeal is located in Toronto, and that any case to be argued at Court of Appeal will be argued in Toronto. 2 Section 20 of CJA provides that, for appeals to Divisional Court, such an appeal shall be RULES OF CIVIL PROCEDURE turn in leading during appeal dance. The CJA tells you where you should appeal Rules 2 Although am mindful that, with advent of technology, Court of Appeal has grown more sophisticated and such things as leave to appeal motions can be

6 or Divisional Court, and is Rule 62 deals with appeals from an interlocutory Order. Certainly, in personal injury actions, interlocutory Orders arise and do get appealed. It is imperative to understand separate It is beyond scope of this paper to deal with issue of interlocutory versus final Orders, as decisions on motion relating to amendment of pleadings; decisions on motion relating to production of documents; disputes relating to scope of Discovery; medical examinations; inspection and/or preservation of property; undertakings and refusals; and production from third parties, particularly Crown and police entities. In our jurisdiction, where we no longer have a sitting Master, those motions are all heard at first instance by a judge of Superior Court of Justice. As stated earlier, when appealing an -4- gives procedural direction. Rule 61 deals with procedure on appeals to Court of Appeal based on an appeal from a final Order. appeal routes that apply to final Orders versus interlocutory Orders. that topic merits an entire paper on its own, or than to say that it is important that you get that analysis right. Interlocutory appeals, commonly seen in personal injury context, would include: interlocutory Order of a judge of Superior Court of Justice, leave is required as provided by Rules of Civil Procedure.

7 a flowchart. have reproduced procedural appeal summary from my own 2013 Carswell pending appeal. The Stay rule is that re is an general stay of any order for automatic payment of money, except support order, upon delivery a notice of appeal: rule of There is no automatic for orders granting non- stay a notice of appeal because be delivered until leave cannot appeal is granted. to if desired, and no Therefore, stay is available, automatic for a stay under rule move leave to appeal, if Seek (a) by motion to a required to appeal to Court of leave shall be made in Appeal be as early as time Can making of order to of notice of motion within Serve days after date of order 7 to be appealed: rule sought and see also rules 62.02, days after making of 15 order or decision sought file with proof of service and 5 days after service. within -5- The appeal route is difficult and confusing enough that most civil practice compendiums include Ontario Civil Practice. SUMMARY OF PROCEDURE ON AN APPEAL TO AN APPELLATE COURT (Appeals to Court of Appeal for Ontario or to Divisional Court) Who Does It What To Do When Appellant be appealed: see rule relief. Moreover, monetary leave to appeal is where re will be no required automatic stay immediate Appellant judge: rule by motion to appellate rule Motions for court: and 37.08(1) (6) notice of motion within Serve writing: rule be appealed, unless a to provides orwise, statute

8 Court reporter of evidence (Form certificate rule C): notice of appeal with File of service: rule proof of evidence certificate 61D): rule 61.05(2) (Form an agreement as to Make and evidence: documents rule 61.05(4). notice of cross- Serve (Form 61E), if cross- appeal cross-appeal with proof of of rule service: for security for costs Move appeal if appropriate: rule of proof of ordering File of evidence: rule transcript written notice to Give and registrar when parties transcribed: rule evidence 61.05(7) 30 days after Within of order appealed making unless a statute or from provide orwise (rule Rules or within 7 days of 61.04(1)) granting of leave to a divorce action a notice of In must be filed within appeal days of date of 30 Divorce Act judgment: 10 days after it is Within rule 61.04(4) served: 15 days after service Within appellant's certificate. of 30 days after service Within notice of appeal. of within 15 days after Serve of notice of appeal service file within 10 days after and service. at least 7 days' notice to On appellant: rules 61.16(1) and 37.07(6). 30 days after filing Within of appeal. notice -6- Serve notice of appeal Appellant 61A) and appellant's (Form where leave required: appeal 61.03(6) and 62.02(8). rules (Canada), s. 21. Appellant 61.04(4). Serve respondent's Respondent or Respondent appealing, and n file notice Respondent Appellant 61.05(5). Forthwith.

9 appeal by (a) if Perfect ordered causing record so original exhibits to be and to registrar, forwarded appeal book, service exhibit compendium, written, and if book, electronic copy of available, transcript of evidence and appellant's factum (an copy of factum electronic be filed but not served), must of listing for hearing Notice 61G) is to be mailed (Form appeal has been after on list of cases to placed be heard: rule 61.09(5) appellant does not file that necessary proof have been ordered transcripts fails to perfect appeal: or rule 61.13(1). factum is to Respondent's served and filed with proof be service and is to include a of as appellant by cross- factum if re is a cross- appeal rule appeal: factum as Deliver to cross- respondent no transcript is required, If 30 days of filing notice within appeal; if a transcript is of within 60 days after required, notice that receiving has been evidence transcribed: rule 61.09(1). When appealperfeed. 10 days' notice to On appellant. 60 days after service Within appeal book, transcript of evidence and appellant's of factum. 10 days after service Within respondent's factum: of rule 61.12(4). -7- Appellant serving and filing with proof of filing with registrar a (c) of perfection: rule certificate Registrar Respondent Move to dismiss for delay if Respondent Appellant if re is a cross- appeal, rule 61.12(4). appeal: SUMMARY OF PROCEDURE ON AN APPEAL FROM AN INTERLOCUTORY ORDER (The following is procedure on an appeal to a judge of Superior Court of Justice provided in rule As to what appeals are covered by that rule, see rule 62.01(1).)

10 notice of appeal Serve 62A): rule 62.01(2). (Form at place where office is to be heard: rule appeal Re place of hearing, 62.01(5). rule (6). see appeal record and Serve and file it, with proof factum service, in court office of place where appeal at is to be heard: rule (7). any furr material Serve factum and file, with and of service, in court proof at place where office is to be heard: rule appeal 62.01(8). 7 days after Within of order or making appealed from: certificate (2). rule later than 7 days before Not hearing date: rule hearing date: rule 62.01(7). and file factum and Serve furr materials at least any days before hearing: (8) and (8.1). Rule -8- Who Does It What To Do When Appellant Appellant File notice of appeal in court 62.01(5). Not later than 7 Appellant days before Respondent A BRIEF WORD ABOUT COSTS Where only issue on appeal relates to costs that were awarded that were in discretion of court, be mindful that s.133 of CJA mandates that leave to appeal is required. There is no appeal, as a right, when only issue is costs. Section 133 provides that leave to appeal is required from any Order that was made with consent of parties, or where only issue on appeal relates to costs that were in discretion of court.

11 tried without a jury. Several of non-jury cases apply directly to personal injury litigation, relief against a municipality; declaratory relief (such as may arise in an LTD or accident benefit context); and/or or equitable relief (which again might arise in a first-party benefit dispute). The determination of facts and assessment of law can In contrast, jury trials yield answers to questions that were put to jury, but no transparent comes to appeals from a jury verdict, as opposed to a judicial decision. -9- The case law dealing with s.133 of CJA confirms that leave to appeal a costs Order is granted sparingly and only where re are strong grounds that lower court erred with its award of costs. 3 TORT ACTION NON-JURY Section 108 of Courts of Justice Act singles out 12 specific types of cases which must be being: A trial determined by a judge sitting without a jury yields a written decision which can n be subject matter of an appeal. be transparently reviewed by an appeal court. This does have an impact on capacity and willingness of an appeal court to grant an appeal. written decision outlining how those questions came to be answered. There are clear implications resulting in a distinction between how cases are viewed by an appeal court, when it 3 McNaughton Automotive Ltd. v. Co-Operators General Insurance Company 2008 ONCA 597; Axelrod v. Beth Jacob of Kitchener, [1943] OWN 80

12 Accident benefits are claimed and received in law of contract, albeit a contract created by claimant's sole option, dispute may be advanced by way of arbitration at FSCO, or by different implications on appeal ACCIDENT BENEFIT APPEALS statute and regulation governing mandatory auto insurance system that applies to all Ontario motorists. As a first step, a claimant must file an application for mediation with Financial Services Commission of Ontario ("FSCO"). If mediation fails to result in a resolution of dispute, at way of litigation in Superior Court of Justice. Disputes which proceed through FSCO create Appeals in Arbitration Context FSCO has its own Dispute Resolution Practice Code ("DRPC"), somewhat like its own version of a combined Courts of Justice Act and Rules of Civil Procedure. Section 50 of DRPC provides for any party to an arbitration to appeal Order of an arbitrator to Director of Arbitrations (or as often case to Director's Delegate). Appeals to Director must be in prescribed form as outlined in DRPC. Like civil appeals, Notice of Appeal must be filed within 30 days of date of arbitration Order. 4 Attached at Tab B is Form Notice of Appeal that applies to appeals from a FSCO arbitration, along with Guide published by FSCO that accompanies Notice of Appeal form. Following Order of Director or Director's Delegate, appropriate next stage in appeal process is not actually an appeal, but rar an Application for Judicial Review of 4 See Section 52 of Dispute Resolution Practice Code.

13 issue in appeal and nature of decision from which appeal is made. This has long continues to apply. On questions of law alone, standard is correctness, ie. was judge below right or was judge below wrong with legal interpretation? even questions of mixed fact and law, standard of review is more onerous, requiring as initial trier of fact to assess and determine those factual matters. The kinds of errors that constitute palpable and overriding errors include following: Failure to consider relevant evidence. The misapprehension of relevant evidence. The consideration of evidence that is irrelevant. -11 decision of Director or Director's Delegate made to Divisional Court. From Divisional Court, matter would n proceed to Ontario Court of Appeal. 5 STANDARD OF REVIEW There are competing standards of review applied to appeals, depending on nature of remained one of thornier aspects of doing appellate work. Judge Alone Trial In a judge alone case, seminal Supreme Court of Canada decision in Housen v. Nikolaisen 6 On findings of fact by a trial judge, but also including inferences drawn from those facts, and appellant to demonstrate a palpable and overriding error. Simply put, judge is entitled to deference, indeed a high degree of deference, as appeal court is not in as good a position 5 See seminal decision in G.P.v. Pilot Insurance Company, 2008 CanLII, 2602, as an example of this appeal route, stemming from an appeal of a FSCO arbitral decision 6 Housen v. Nikolaisen, supra

14 available in a transcript form reduced to writing. Of course, a judge's charge does not exist in a non-jury case; rar, one is left with sufficiency of judge's own reasons. A jury verdict will not be set aside as against weight of evidence unless it is so plainly Accordingly, test of reasonableness in civil context asks wher jury's verdict is so appreciate evidence and acted in violation of its duty. In cases where re is some On issue of non-pecuniary general damages, Court of Appeal has given some guidance in terms of a general rule of thumb, if non-pecuniary general damage award is too high or too low by 50% or more, court may well conclude that damages are inordinately high or McCannell v. McLean, 1937 CanLII SCC [1937] SCR 341 (which has been affirmed over and over again by multiple courts ever after) 8 Howes v. Crosby (1984), 45 O.R. (2nd) 449; also see Fidler v. Chiavetti (2010), 317 D.LR. (4th) 385 (ONCA) finding that has no basis on evidence. finding based on an inference that is really more speculative than legitimate inference. 7 Jury Trial Appeals in jury context often tend to focus on judge's charge to jury, which is unreasonable and unjust as to satisfy court that no jury reviewing evidence as a whole and acting judicially could have reached it. 8 unwarranted by evidence as to justify conclusion of appeal court that jury did not evidence to support jury's verdict, high deference will be accorded to jury's verdict, such that it will not be set aside, even if contrary conclusion was also available on evidence. low and n vary those damages. 9 7 Peart Peel Regional Police Services Board (2006), 217 OAC 269 (CA) 158

15 Judicial Review of a from Director or Director's Delegate. The 2008 Supreme Court of Canada case Dunsmuir v. New Brunswick 1 clarified this area of law by establishing: Palpable and overriding error -13- FSCO Decision The standard of review changes completely when dealing with a judicial review of a decision (a) On questions of law, standard of review is correctness; On questions of mixed law and fact, standard of review is reasonableness. Note that "reasonableness" is a deferential standard which acknowledges that FSCO, like or administrative tribunals from which judicial review may be sought, is a specialized body, possessing specialized knowledge and experience. A judicial review application is not same thing as an appeal, because role of court is simply to look at decision of tribunal, not to conduct a trial or inquiry into truth of facts that were presented in original arbitral decision. STANDARD OF REVIEW CHART Issue Standard of review Question of law Correctness Question of fact factand law Correctness Mixed palpable and overriding, depending on,-, to which chief error is factual or legal extent Judicial review from FSCO Legal analysis correctness Mixed fact and law reasonableness 10 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] SCR 190

16 absence of an objection at trial, in most instances, an alleged misdirection or non- direction will not result in a new trial in a civil case, unless appellant can show that a substantial wrong or miscarriage of justice has occurred. 12 The absence of objection sometimes relate to jury questions mselves. Typically, before closing outset of trial rar than as an afterthought, but that is an issue for anor paper.) In order to appeal a jury's award of damages, in absence of some error in charge to jury, " jury's assessment must be so inordinately high or low as to constitute a wholly erroneous assessment". Jury awards attract significant deference. It is very eir too high or too low, and outside of generally expected range, it was not so -14- PRACTICE POINTS JURY TRIAL APPEALS While failure of counsel to object to a judge's charge to jury is not always fatal in a civil jury charge, "an appellate court is entitled to give it considerable weight". 11 In suggests that an issue was not seen as central to jury's deliberations. In addition to complaints about charge to jury, appeals in jury cases can also submissions are made, parties meet with trial judge to formulate questions to be put to jury. (Preferably, in my view, issue of jury questions is dealt with at common to see appeal court indicate that, while an award of general damages was plainly unreasonable or unjust so as to satisfy court that no jury reviewing evidence as a whole, and acting judicially, could have reached that decision. Unless jury award is truly exceptional, being clearly too low or clearly too high, be cautious advancing an appeal from a jury award that simply complains about quantum of damages awarded. Only where jury award is exceptional, will it warrant appellant intervention.

17 (a) wher or not jury should have been instructed about cap on non- on appeal. 14 Martin v. Fleming, which finally answered, after 16 years of debate, question of wher a appeal was dismissed with costs fixed in total amount of $15,000.00, allocated equally as between three responding parties. See Gutbir University Health Network, 2012 ONCA 66 and McCannell v. McLean, 1937 CanLII (SCC) 13 See Housen Nikolaisen, 2002 SCC 33 and Waxman Waxman, (2004) 186 OAC Or appeals that may occur in jury context include: pecuniary general damages; wher jury was inflamed by prejudicial evidence that was tendered; and (c) should jury have been struck by trial judge? 13 Note that a factual finding grounded on credibility is a particularly difficult issue to disturb RECENT PERSONAL INJURY APPEAL DECISIONS ILLUSTRATING THE POINTS Martin v. Fleming 15 On October 29, 2010, Ontario Court of Appeal heard and released orally its decision in plaintiff is subject to one deductible when involved in multiple accidents, or individual deductibles for each accident. This was a purely legal question and indeed came to Court of Appeal following a Rule 21 motion for determination of a point of law. The motion judge's decision was upheld, and 11 Marshall v. Watson Wyatt & Company, 2002 CanLII, ONCA 12 Vokes Estate v. Palmer, 2012 ONCA 510, at para. 7 and Rizzi Mavros, [2008] OJ No. 935, at para Martin Fleming (2012) ONCA 750

18 The appeal was dismissed with costs in amount of $15, Zurek v. Ferris 1 Heard and released on October 3, 2012 was decision in Zurek v. Ferris, which was appeal of a jury's assessment of damages, defendant having admitted liability at trial for injuries. The appellant sought to set aside jury's verdict and sought an order for a new trial. The issue on appeal was wher trial judge's charge to jury deprived Ms. Zurek of a fair trial. This argument needed to fit within language of s. 134(6) of Courts of Justice Act. While acknowledging that charge to jury was "unorthodox", and that some of trial judges' comments were unnecessary and not germane to issues before jury, Court of Appeal was still satisfied that charge, when read as a whole, was fair. The Court of Appeal specifically noted fact that few objections to charge were raised at trial, which it said "supports our conclusion that charge as a whole was fair". Parris v. Laidley 7 The case was heard and decision also released on October 31, The court was asked to consider wher motions judge below appropriately granted summary judgment on issue of implied consent in a medical negligence case. Essential to motion judge's decision was that defendant had not rebutted presumption of consent. He drew an adverse inference because he failed to make any real effort to make his son's evidence available. 16 Zurek v. Fems (2012) ONCA Parris v. Laidley (2012) ONCA 755, CanLII

19 account all relevant evidence in determining that conditions precedent to drawing defendant's evidence that supported his position that his son had no consent, express or The appellant was successful, with costs fixed in amount of $6, $400, The plaintiff had suffered a stroke following a cervical rhizotomy performed by an The appeal proceeded on four grounds two relating to liability and two relating to damages. plaintiff would not have consented to rhizotomy if she had been properly informed of The damage appeal arguments contended that assessment of general damages was too were also rejected. The appeal was dismissed with costs fixed in amount of $20, The Court of Appeal indicated that drawing adverse inferences from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all circumstances. A case-specific inquiry is required. The motion's judge failed to take into adverse inference had been met. Specifically, he made no findings concerning credibility of implied, to drive automobile. Edwardson v. Hamilton (St. Joseph's Hospital) 18 This appeal was argued September 28, 2012 and decision released October 26, The defendant doctor in a medical negligence case appealed an award of damages in excess of anaestist. The liability arguments dealt with informed consent and conclusion by trial judge that potential benefits and risks. The liability arguments were rejected by Court of Appeal. high and that assessment of future economic losses was speculative. Those submissions 18 Edwardson v. Hamilton (St. Joseph's Hospital) (2012) ONCA 719

20 when looking at discoverability. The appellant was successful on this particular appeal, being granted leave to serve and file a fresh Statement of Claim adding Third Party as a Court of Appeal appeals. This case is an important one to entire personal injury and insurance law bar, and to every Ontario motorists carry automobile insurance under a policy. Automobile accident victims are entitled to certain no-fault benefits, also known as Individuals with most serious of injuries are -18- Duchesne v. St. Denis 19 This appeal was argued September 4, 2012 and decision was released October 17, The issue on appeal was Limitations Act, 2002, which came into force on January 1, The overall question was wher minor appellant's claim was discovered or discoverable by a reasonable person, within his abilities and in his circumstances, prior to January 1, As an aside, this is a helpful review of Limitations Act and principles to be considered defendant. Costs to plaintiff were awarded throughout in amount of $15,000.00, relative to motions below, and in excess of $56, with respect to Divisional Court and Pastore v. Aviva Canada Inc. 2 Ontarian; it applies to anyone injured in an automobile accident, wher as a pedestrian, passenger, or driver. The case was argued January 19, 2012 and unanimous written decision was released September 27, mandatory private auto insurance regime, in which certain no-fault benefits are provided under a standard government pre-approved auto "statutory accident benefits," regardless of fault. eligible to receive an enhanced level of accident benefits. The term used in Statutory Accident Benefits Schedule ("SABS") to distinguish those who are eligible for enhanced 19 Duchesne v. St. Denis (2012) ONCA 699

21 clarified one of several tests that define who suffers a While re are several different ways that one can be found to suffer from a catastrophic Medical Association's Guides to Evaluation of Permanent Impairment, 4 th Edition, as 1. Activities of daily living; 2. Social functioning; 4. Deterioration or decompensation in work or work-like settings. assessment of "marked impairment" or "extreme impairment" in all four of categories described above, or wher a marked/extreme impairment in a single category alone was with Guides' approach to catastrophic impairment benefits, from or accident victims, is "catastrophic impairment". In Pastore, Feldman J.A. "catastrophic impairment". impairment, Pastore deals with test applicable for "mental or behavioural disorders". Ms. Pastore was a pedestrian who was hit by a car while crossing street. An assessment of her accident-related mental or behavioural disorders was carried out by reference to American mandated by SABS. The Guides direct assessment of functioning in four categories of functional limitation: 3. Concentration, persistence, and pace; and Ms. Pastore's initial application for a catastrophic impairment designation was denied by Aviva Canada. The dispute was heard before an arbitrator of Financial Services Commission of Ontario. Her application was accepted by arbitrator. One of issues raised by Aviva Canada at arbitration was wher test required an overall sufficient. The arbitrator was satisfied that one marked impairment alone was enough to comply 20 Pastore v. Aviva Canada Inc. (2012) ONCA 642

22 determined that it was a reasonable initial decision to find that a single category of impairment 20- On appeal, Court of Appeal addressed appropriate standard of review. Following decision of Supreme Court in Dunsmuir v. New Brunswick, court noted that Financial Services Commission of Ontario, as a specialised tribunal, must be accorded deference. As such, correct standard of review was reasonableness standard. The Court of Appeal that was eir marked or extreme was sufficient to meet test for catastrophic impairment. Ms. Pastore was, consequently, found to be catastrophically impaired. The Court of Appeal has affirmed specialized knowledge of arbitrators at Financial Services Commission of Ontario, need for a broad, liberal, and inclusive approach when determining access to SABS, and clarified previous test for assessing those suffering from mental and behavioural disorders. This decision lends clarity to a long-debated area of personal injury law. Hamman v. Usher 2 The central basis of appellant's appeal in this medical negligence case was that trial judge had made palpable and overriding errors in her findings of fact by misapprehending cogent evidence and failing to consider or reconcile or material evidence. The appellant contended that se failings of trial judge undermined her key finding that cause of bleeding was IUD and not a laceration or perforation resulting from respondent's negligence on July 19, The Court of Appeal did not agree with appellant's position. Accepting that some of evidence may have supported appellant's ory of case, re was ample or evidence to support trial judge's findings. She gave thorough and thoughtful reasons for 21 Hamman Usher(2012) ONCA 818

23 rejecting appellant's ory and accepting respondent's ory. The trial judge did not commit any reviewable error. The appeal was heard and dismissed with costs in amount of $25, on November 20, Hurst v. completion of this paper, so my apologies to MLA team hosting this conference, but it was important enough wanted to add reference to this case to my paper. This appeal arose from a province's no-fault system. Indeed, given its importance, Insurance Bureau of Canada were four cases heard toger, in which all four plaintiffs had first sought a FSCO mediation to dispute a denial of accident benefits. Although it was intended that mandatory FSCO mediation would be completed within 60 days, FSCO developed a huge backlog and was were premature, as mandatory mediation had not taken place Aviva Insurance Companjf z2 The release of this decision on November 29, 2012 by Court of Appeal held up fundamental question of law that goes to core of functioning of and Ontario Trial Lawyers Association were both granted intervener status. The legal question to be answered dealt with interaction of mandatory FSCO mediation system and accident victim's ability to arbitrate/litigate accident benefit disputes. There unable to provide timely mediations. Rar than wait for months and months for mediation to be conducted, actions were commenced in all four cases, even though no mediation had occurred. The insurers all brought motions to dismiss/stay actions, arguing that actions 22 Hurst v. Aviva Insurance Company (2012) ONCA 837

24 At motion stage, motions judge found in favour of plaintiffs, holding that y were so doing, offered language Reading provisions in ir entire context makes it clear that purpose of The purpose of legislative scheme of dispute resolution is to mandate a speedy mediation process, conducted and completed on a strict timetable, in order to settle disputes receive benefits to which y are entitled without delay. do not accept that 60-day clock does not begin to run until FSCO has assessed an application as complete. Such an interpretation, which would allow FSCO to accumulate a backlog of any length, would ignore legislative purpose of providing a submitted. Any deference that is due is not owed to FSCO, but to an arbitrator appointed under Act, or to a find it sufficient to observe that failure of a statutory act to perform a statutory duty does not eliminate a 22 allowed to proceed with ir actions. The Court of Appeal upheld decision of motions judge and, in and an analysis that is helpful to claimants (my plaintiff basis perhaps showing with this statement). Simply put, 60 days means 60 days and claimants seeking accident benefits cannot be made to wait and wait simply because system is unable to accommodate ir claims. Key pronouncements include: legislation is to make mandatory a mediation process that is timely and effective. quickly and economically. The speedy mediation process enables insured persons to speedy mediation process. have placed no weight on FSCO's interpretation of Act as appellants have Director's Delegate on an appeal of an arbitrator's decision. person's rights granted by statute.

25 23 Costs were ordered against appellant insurers in sum of $10, and as against intervener, IBC, in amount of $6,584.00

26 24 BIBLIOGRAPHY The Standard of Appellate Review: High Hurdles to Right Wrongs, Igor Ellyn, Q.C., CS and Evelyn Perez Youssoufian, published in July 2009 edition of The Litigator, Journal of Ontario Trial Lawyers Association Judicial Review of Tribunal Decisions, Carolyn Brandow, published in December 2009 edition of The Litigator, Journal of Ontario Trial Lawyers Association Defending Your Damage Award on Appeal, Kirk Stevens, paper presented Ontario Trial Lawyers Association 2009 Spring Conference

27 Leave to appeal required (a) from an order made with consent of parties; or where appeal is only as to costs that are in discretion of court that made for costs. R.S.O. 1990, c. C.43, s order Powers on appeal 134.(1)Unless orwise provided, a court to which an appeal is taken may, make any order or decision that ought to or could have been made by court or tribunal (a) from; appealed On motion, a court to which a motion for leave to appeal is made or to which an appeal is (2) may make any interim order that is considered just to prevent prejudice to a party pending taken appeal. 1999, c. 12, Sched. B, s. 4 (3). Power to quash Unless orwise provided, a court to which an appeal is taken may, in a proper case, draw inferences of fact from evidence, except that no inference shall be drawn that is (a) with a finding that has not been set aside; inconsistent receive furr evidence by affidavit, transcript of oral examination, oral examination before court or in such or manner as court directs; and SCHEDULE "A" Appeals Judge not to hear appeal from own decision A judge shall not sit as a member of a court hearing an appeal from his or her own 132 R.S.O. 1990, c. C.43, s decision _._. No appeal lies without leave of court to which appeal is to be taken, order a new trial; (c) make any or order or decision that is considered just. R.S.O. 1990, c. C.43, s. 134 (1). Interim orders (3) On motion, a court to which an appeal is taken may, in a proper case, quash appeal. Determination of fact (c) direct a reference or trial of an issue,

28 determine appeal. The powers conferred by this section may be exercised even if appeal is as to part only (5) an order or decision, and may be exercised in favour of a party even though party did not of A court to which an appeal is taken shall not direct a new trial unless some substantial wrong (6) miscarriage of justice has occurred. R.S.O. 1990, co C.43, s. 134 (6); 1994, c. 12, s. 46 (1). or Court of Appeal jurisdiction an order of Divisional Court, on a question that is not a question of fact alone, with leave (a) Court of Appeal as provided in rules of court; of a final order of a judge of Superior Court of Justice, except an order referred to in clause (1) (a) or an order from which an appeal lies to Divisional Court under anor Act; 19 s. 6 (1); 1994, c. 12, s. 1; 1996, c. 25, s. 9 (17). The Court of Appeal has jurisdiction to hear and determine an appeal that lies to (2) Court or Superior Court of Justice if an appeal in same proceeding lies to and Divisional is taken to Court of Appeal. R.S.O. 1990, c. C.43, s. 6 (2); 1996, c. 25, s. 9 (17). The Court of Appeal may, on motion, transfer an appeal that has already been commenced (3) Divisional Court or Superior Court of Justice to Court of Appeal for purpose of in subsection (2). R.S.O. 1990, c. C.43, s. 6 (3); 1996, c. 25, s. 9 (17). to enable court to Scope of decisions appeal. R.S.O. 1990, c. Co43, s. 134 (3-5). New trial Idem Where some substantial wrong or miscarriage of justice has occurred but it affects only part 7.(Z.). an order or decision or some of parties, a new trial may be ordered in respect of only that of part or those parties. R.S.O. 1990, c. C.43, s. 134 (7); 1994, c. 12, s. 46 (2). 6.(1) An appeal lies to Court of Appeal from, a certificate of assessment of costs issued in a proceeding in Court of Appeal, on an (c) in respect of which an objection was served under rules of court. R.S.O. 1990, c. C.43, issue Combining of appeals from or courts Idem

29 Divisional Court jurisdiction an interlocutory order of a judge of Superior Court of Justice, with leave as provided in rules of court; (a) for a for periodic payments that amount to not more than $25,000, exclusive of costs, in 12 commencing on date first payment is due under order; months dismissing a claim for an amount that is not more than amount set out in clause (a) or (c) or ; would have been not more than amount set out in clause (a) or. 2006, c. 21, awarded A, s. 3; 2009, c. 33, Sched. 2, s. 20 (2). Sched. (a) for a for periodic payments that amount to not more than $50,000, exclusive of costs, in 12 commencing on date first payment is due under order; months dismissing a claim for an amount that is not more than amount set out in clause (a) or (c) or ; would have been not more than amount set out in clause (a) or. 2006, c. 21, awarded A, s. 3; 2009, c. 33, Sched. 2, s. 20 (3). Sched (1) An appeal lies to Divisional Court from, a final order of a judge of Superior Court of Justice, as described in subsections (1.1) (a) (1.2); and (c) a final order of a master or case management master. 2006, c. 21, Sched. A, s. 3. Same If notice of appeal is filed before October 1, 2007, clause (1) (a) applies in respect of a order, final single payment of not more than $25,000, exclusive of costs; dismissing a claim for an amount that is more than amount set out in clause (a) or (d) in respect of which judge or jury indicates that if claim had been allowed amount and Same If notice of appeal is filed on or after October 1, 2007, clause (1) (a) applies in respect a final order, of single payment of not more than $50,000, exclusive of costs; dismissing a claim for an amount that is more than amount set out in clause (a) or (d) in respect of which judge or jury indicates that if claim had been allowed amount and

30 Place for hearing An appeal to Divisional Court shall be heard in region where hearing or or 20.(1) that led to decision appealed from took place, unless parties agree orwise or process Chief Justice of Superior Court of Justice orders orwise because it is necessary to do in interests ofiustice. 1994, c. 12, s. 7; 1996, c. 25, s. 9 (14). so Or proceedings Any or proceeding in Divisional Court may be brought in any region. R.S.O. 1990, c. (2) s. 20 (2). C.43, Rules to apply to all appeals to an appellate court except as provided in (1) or rule and, with necessary modifications, to proceedings in an clause (a) stated case under a reference under section 8 of Courts of Justice Act. R.R.O. 1990, Reg. 194, r ; O. (c) 536/96, s. 7; O. Reg. 14/04, s. 28. Reg In rules 61.03to 61.16, be served within 15 days after making of order or decision from which leave to is sought, unless a statute provides orwise; and appeal -4- Appeals APPLICATION OF THE RULE appellate court by way of, statute; special case under rule 22.03, subject to any directions given under subrule (2); and DEFINITION "Registrar means, (a) in Court of Appeal, Registrar of Court of Appeal, or in Divisional Court, registrar in regional centre of region where appeal is be heard in accordance with subsection 20(1) of Courts of Justice Act. R.R.O. 1990, Reg. to 194, r MOTION FOR LEAVE TO APPEAL TO DIVISIONAL COURT Notice of Motion for Leave (1)Where an appeal to Divisional Court requires leave of that court, notice of for leave shall, motion (a) state that motion will be heard on a date to be fixed by Registrar;

31 be filed with proof of service in office of Registrar, within five days after service. (c) 1990, Reg. 194, r (1); O. Reg. 61/96, s. 5 (2); Oo Reg. 14/04, s. 29 (1). R.R.O. Motion Record, Factum and Transcripts a table of contents describing each document, including each exhibit, by its nature and date (i) in case of an exhibit, by exhibit number or letter, and, a copy of all affidavits and or material used before court or tribunal from which leave (v) appeal is sought, to a list of all relevant transcripts of evidence in chronological order, but not necessarily (vi) mselves, and transcripts shall file three copies of motion record, factum and transcripts, if any, with proof of and within thirty days after filing of notice of motion for leave to appeal. R.R.O. 1990, service, On a motion for leave to appeal to Divisional Court, responding party may, where he (3) she is of opinion that moving party's motion record is incomplete, serve a motion or record containing, in consecutively numbered pages arranged in following order, a table of contents describing each document, including each exhibit, by its nature and date (a) in case of an exhibit, by exhibit number or letter; and and, a copy of any material to be used by responding party on motion and not included in motion record, (2) On a motion for leave to appeal to Divisional Court, moving party shall serve, a motion record containing, in consecutively numbered pages arranged in following (a) order, (ii) a copy of notice of motion, (iii) a copy of order or decision from which leave to appeal is sought, as signed and entered, a copy of reasons of court or tribunal from which leave to appeal is sought with a (iv) typed or printed copy if reasons are handwritten, furr a copy of any order or decision that was subject of hearing before court or (iv.l) from which leave to appeal is sought, tribunal a copy of any reasons for order or decision referred to in subclause (iv.l), with a (iv.2) typed or printed copy if reasons are handwritten, furr (vii) a copy of any or material in court file that is necessary for hearing of motion; a factum consisting of a concise argument stating facts and law relied on by moving and party; (c) relevant transcripts of evidence, if y are not included in motion record, Reg. 194, r (2); O. Reg. 61/96, s. 5 (3); O. Reg. 206/02, s. 13 (1).

32 may serve a factum consisting of a concise argument stating facts and law relied on by and responding party, and shall file three copies of responding party's motion record and factum and transcripts, if any. R.R.O. 1990, Reg. 194, r (3); O. Reg. 61/96, s. 5 record, O. Reg. 206/02, s. 13 (2). (4); Notice and Factum to State Questions on Appeal R.R.Oo 1990, Reg. 194, r (4); O. Reg. 61/96, s. 5 (5). Date for Hearing The Registrar shall fix a date for hearing of motion which shall not, except with (5) party's consent, be earlier than fifteen days after filing of moving party's responding motion record, factum and transcripts, if any. R.R.O. 1990, Reg. 194, r (5). Time for Delivering Notice of Appeal Where leave is granted, notice of appeal shall be delivered within seven days after of leave. R.R.O. 1990, Reg. 194, r (6). granting Costs Appeal Joined with Appeal as of Right Where a party seeks to join an appeal under clause 133 of Courts of Justice Act with (7) appeal as of right, an Costs Cross-Appeal Joined with Appeal or Cross-Appeal as of Right leave to appeal shall be sought from panel of Divisional Court hearing appeal or as of right; and cross-appeal -6- factum, if any, with proof of service, within fifteen days after service of moving party's motion The moving party's notice of motion and factum shall, where practicable, set out specific (4) that it is proposed Divisional Court should answer if leave to appeal is granted. questions request for leave to appeal shall be included in notice of appeal or in a (a) notice of appeal as part of relief sought; supplementary leave to appeal shall be sought from panel of Divisional Court hearing appeal as right; and of where leave is granted, panel may n hear appeal. O. Reg. 534/95, s. 3; O. Reg. (c) s. 1 (1); O. Reg. 14/04, s. 29 (2). 175/96, Where a party seeks to join a cross-appeal under a statute that requires leave for an appeal 28) an appeal or cross-appeal as of right, with (a) request for leave to appeal shall be included in notice of appeal or cross-appeal or in a supplementary notice of appeal or cross-appeal as part of relief sought; where leave is granted, panel may n hear appeal. O. Reg. 534/95, s. 3; O. Reg. (c) s. 1 (2); O. Reg. 206/02, s. 13 (3); O. Reg. 14/04, s. 29 (3); O. Reg. 394/09, s /96,

33 Motion in Writing (1) Where an appeal to Court of Appeal requires leave of that court, motion leave shall be heard in writing, without attendance of parties or lawyers. O. Reg. 333/96, for The notice of motion for leave to appeal shall state that court will hear motion in (2) 36 days after service of moving party's motion record, factum and transcripts, if any, writing, shall be served within 15 days after making of order or decision from which leave to (a) is sought, unless a statute provides orwise; and appeal shall be filed with proof of service in office of Registrar within five days after service. Reg. 61/96, s. 6; O. Reg. 14/04, s. 30 (1). O. The moving party shall serve a motion record and transcripts of evidence, if any, as provided (4) subrule (2), and a factum consisting of following elements: in Part I, containing a statement identifying moving party and court from which it is 1. to appeal, and stating result in that court. proposed Part II, containing a concise summary of facts relevant to issues on proposed 2. with such reference to evidence by page and line as is necessary. appeal, Part III, containing specific questions that it is proposed court should answer if leave 3. appeal is granted. to Part IV, containing a statement of each issue raised, immediately followed by a concise 4. of law and authorities relating to that issue. statement Schedule B, containing text of all relevant provisions of statutes, regulations and by-laws. 6. Reg , s. 6; O. Reg , s. 2 (2). O. Parts to IV shall be arranged in paragraphs numbered consecutively throughout factum. (5) Reg , s. 6. O. -7- Application of Rules Subrules (1) to (6) do not apply where subrules (7) and (8) apply. O. Reg. 175/96, s. 1 (3). MOTION FOR LEAVE TO APPEAL TO COURT OF APPEAL s. 2 (1); O. Reg. 575/07, s. 4. Notice of Motion on filing of moving party's reply factum, if any, whichever is earlier. O. Reg , s. or (1). 2 The notice of motion, Moving Party's Motion Record, Factum and Transcripts 5. Schedule A, containing a list of authorities referred to.

34 The responding party may, if of opinion that moving party's motion record is (7) serve a motion record as provided in subrule (3). O. Reg. 61/96, s. 6; O. Reg. incomplete, Part I, containing a statement of facts in moving party's summary of relevant facts that 1. responding party accepts as correct and those facts with which responding party Part II, containing responding party's position with respect to each issue raised by 2. party, immediately followed by a concise statement of law and authorities relating to moving Part III, containing a statement of any additional issues raised by responding party, 3. of each issue to be followed by a concise statement of law and authorities relating statement Schedule B, containing text of all relevant provisions of statutes, regulations and by-laws. 5. Reg. 61/96, s. 6. O. Parts to III shall be arranged in paragraphs numbered consecutively throughout factum. (9) Reg. 61/96, s. 6. O. The responding party shall file three copies of factum, and of motion record, if any, (10) may file three copies of a book of authorities, if any, with proof of service, within 25 days and If responding party's factum raises an issue on which moving party has not taken a (11) in moving party's factum, that party may serve a reply factum. O. Reg. 61/96, s. 6. position The reply factum shall contain consecutively numbered paragraphs setting out moving (12) position on issue, followed by a concise statement of law and authorities relating party's The moving party shall file three copies of reply factum with proof of service within 10 (13) after service of responding party's factum. O. Reg. 61/96, s. 6. days -8- The moving party shall file three copies of motion record, factum and transcripts, if any, (6) may file three copies of a book of authorities, if any, with proof of service, within 30 days and after filing of notice of motion for leave to appeal. O. Reg. 61/96, s. 6. Responding Party's Motion Record and Factum 333/96, s. 2 (3). (8) The responding party shall serve a factum consisting of following elements: and a concise summary of any additional facts relied on, with such reference to disagrees by page and line as is necessary. evidence it. to it. 4. Schedule A, containing a list of authorities referred to. after service of moving party's motion record and or documents. O. Reg. 61/96, s. 6. Moving Party's Reply Factum to it. O. Reg. 61/96, s. 6.

35 Thirty-six days after service of moving party's motion record and factum, and (14) if any, or on filing of moving party's reply factum, if any, whichever is earlier, transcripts, motion shall be submitted to court for consideration, and, if it appears from written material that no oral hearing is warranted, court shall (a) motion; determine Date for Oral Hearing Time for Defivering Notice of Appeal Where leave is granted, notice of appeal shall be delivered within seven days after (16) of leave. O. Reg. 61/96, s. 6. granting Costs Appeal Joined with Appeal as of Right Where a party seeks to join an appeal under clause 133 of Courts of Justice Act (17) an appeal as of right, with request for leave to appeal shall be included in notice of appeal or in a (a) notice of appeal as part of relief sought; supplementary leave to appeal shall be sought from panel of Court of Appeal hearing appeal as right; of Costs Cross-Appeal Joined with Appeal or Cross-Appeal as of Right Where a party seeks to join a cross-appeal under a statute that requires leave for an (18) with an appeal or cross-appeal as of right, appeal leave to appeal shall be sought from panel of Court of Appeal hearing appeal or as of right; cross-appeal -9- Determination of Motion orwise, court shall order an oral hearing to determine motion. O. Reg. 61/96, s. 6. (15) If court orders an oral hearing, Registrar shall fix a date for it. O. Reg. 61/96, s. 6. where leave is granted, panel may n hear appeal. O. Reg. 175/96, s. 2; O. Reg. (c) s. 30 (2). 14/04, request for leave to appeal shall be included in notice of appeal or cross-appeal or in (a) supplementary notice of appeal or cross-appeal as part of relief sought; a where leave is granted, panel may n hear appeal. O. Reg. 175/96, s. 2; O. Reg. (c) s. 14; O. Reg. 14/04, s. 30 (3); O. Reg. 394/09, s /02, Application of Rules (19) Subrules (1) to (16) do not apply where subrules (17) and (18) apply. O. Reg. 175/96, s. 2.

36 (1) An appeal to an appellate court shall be commenced by serving a notice of appeal A) toger with certificate required by subrule (1), within 30 days after (Form making of order appealed from, unless a The notice of appeal and certificate need not be served on, Title of Proceeding Notice of Appeal default; or wher order appealed from is final or interlocutory, -10- COMMENCEMENT OF APPEALS Time for Appeal and Service of Notice statute or se rules provide orwise, (a) on every party whose interest may be affected by appeal, subject to subrule (1.1); and on any person entitled by statute to be heard on appeal. O. Reg. 14/04, s. 31. (a) a defendant who was noted in a respondent who has not delivered a notice of appearance, unless respondent was at hearing with leave. O. Reg. 14/04, s. 31. heard The title of proceeding in an appeal shall be in accordance with Form 61B. R.R.O. 1990, 194, r (2). Reg. The notice of appeal (Form 61A) shall state, (a) relief sought; grounds of appeal; and (c) basis for appellate court's jurisdiction, including references to, (i) any provision of a statute or regulation establishing jurisdiction, (ii) (iii) wher leave to appeal is necessary and if so wher it has been granted, and (iv) any or facts relevant to establishing jurisdiction. O. Reg. 19/03, s. 11. The notice of appeal, with proof of service, shall be filed in accordance with subrule 4.05 (4) (4) in or mailing to court office) in Registrar's office within ten days after service. R.R.O. (leaving 1990, Reg. 194, r (4).

37 (1) In order to minimize number of documents and length of transcript required an appeal, appellant shall serve with notice of appeal an appellant's certificate for evidence (Form 61C) setting out only portions of evidence that, in respecting opinion, are required for appeal. O. Reg. 570/98, s. 5. appellant's Within fifteen days after service of appellant's certificate, respondent shall serve on (2) appellant a respondent's certificate respecting evidence (Form 61D), confirming certificate or setting out any additions to or deletions from it. R.R.O. 1990, Reg. 194, appellant's (2). r. A respondent who fails to serve a respondent's certificate within prescribed time shall be (3) to have confirmed appellant's certificate. R.R.O. 1990, Reg. 194, r (3). deemed Instead of complying with subrules (1) to (3), parties may, within thirty days after service notice of appeal, make an agreement respecting documents to be included in of The appellant shall within thirty days after filing notice of appeal file proof that.( has ordered a transcript of all oral evidence that parties have not agreed to omit, appellant A party who has previously ordered a transcript of oral evidence shall forthwith modify (6) in writing to comply with certificates or agreement. R.R.O. 1990, Reg. 194, r order When evidence has been transcribed, court reporter shall forthwith give written.(z). to all parties and Registrar. R.R.O. 1990, Reg. 194, r (7). notice The court may impose costs sanctions where evidence is transcribed or exhibits are unnecessarily. R.R.O. 1990, Reg. 194, r (8). reproduced (1) In an appeal where it appears that, re is good reason to believe that appeal is frivolous and vexatious and that (a) has insufficient assets in Ontario to pay costs of appeal; appellant an order for security for costs could be made against appellant under rule 56.01; or -11 CERTIFICATE OR AGREEMENT RESPECTING EVIDENCE Appellant's Certificate Respecting Evidence Respondent's Certificate Respecting Evidence Agreement Respecting Evidence book and compendium and transcript required for appeal. R.R.O. 1990, Reg. appeal r (4); O. Reg. 19/03, s , Ordering Transcripts to any direction under subrule (4) (relief from compliance). R.R.O. 1990, Reg. subject r (5). 194, (6). Costs Sanctions for Unnecessary Evidence SECURITY FOR COSTS OF APPEAL

38 judge of appellate court, on motion by respondent, may make such order for security a costs of proceeding and of appeal as is just. R.R.O. 1990, Reg. 194, r (1); O. for If an appellant fails to comply with an order under subrule (1), a judge of appellate court (2) motion may dismiss appeal. R.R.O. 1990, Reg. 194, r (2). on (1) A respondent who, (a) seeks to set aside or vary order appealed from; or will seek, if appeal is allowed in whole or in part, or relief or a different disposition than order appealed from, within fifteen days after service of notice of appeal, serve a notice of cross-appeal shall, 61E) on all parties whose interests may be affected by cross-appeal and on any (Form cross-appeal. R.R.O. 1990, Reg. 194, r (1). A respondent may, subject to subrule (1.2), serve a notice of cross-appeal without leave to appeal for cross-appeal if, obtaining (a) re is an appeal as of right; or The respondent shall obtain leave to appeal in manner provided by subrule (8) (1.2) (18), as case may be, if cross-appeal is taken under a statute that requires or The notice of cross-appeal, with proof of service, shall be filed in office of Registrar (2) ten days after service. R.R.O. 1990, Reg. 194, r (2). within Where a respondent has not delivered a notice of cross-appeal, no cross-appeal may be (3) except with leave of court hearing appeal. R.R.O. 1990, Reg. 194, r (3). heard (1) The notice of appeal or cross-appeal may be amended without leave, before is perfected, by serving on each of parties on whom notice was served a appeal notice of appeal or cross-appeal (Form 61F) and filing it with proof of service. supplementary 1990, Reg. 194, ro (1). R.R.O (c) for or good reason, security for costs should be ordered, Reg. 465/93, s. 6. If an order is made under subrule (1), rules 56.04, 56.05, and apply, with (1.1) modifications. O. Reg. 288/99, s. 21. necessary CROSS-APPEALS person entitled by statute to be heard on appeal, stating relief sought and grounds of leave to appeal has been granted. O. Reg. 206/02, s. 15. leave for an appeal. O. Reg. 394/09, s. 26. AMENDMENT OF NOTICE OF APPEAL OR CROSS-APPEAL Supplementary Notice to be Served and Filed

39 notice of appeal or cross-appeal or supplementary may be relied on at hearing, except with leave of court hearing appeal. R.R.O. notice Reg. 194, r (2). 1990, R.R.O. 1990, Reg. 194, r (3). Time for Perfecting (1) The appellant shall perfect appeal by complying with subrules (2) and (3), where no transcript of evidence is required for appeal, within thirty days after filing (a) of appeal; or notice Record and Exhibits Only If Required If appellant or respondent believes that a part of record or original exhibits court or tribunal from which appeal is taken is required for proper hearing of from appellant or respondent may move before a judge of appellate court for an order appeal, y be sent to Registrar. O. Reg. 24/00, s. 8; O. Reg. 653/00, s. 5. that serve on every or party to appeal and any or person entitled by statute or an order (a) rule (intervention in appeal) to be heard on appeal, under a typed or printed copy of transcript of evidence, an electronic version of transcript of evidence, unless court reporter did not prepare (iv) electronic version, and an -13- Argument Limited to Grounds Stated No grounds or than those stated in Relief Limited No relief or than that sought in notice of appeal or cross-appeal or supplementary may be sought at hearing, except with leave of court hearing appeal. notice PERFECTING APPEALS where a transcript of evidence is required for appeal, within 60 days after receiving that evidence has been transcribed. R.R.O. 1990, Reg. 194, r (1); O. Reg. notice 570/98, s. 6 (1). Material to be Served and Filed (3) The appellant shall, (i) appeal book and compendium referred to in rule 61.10, (ii) exhibit book referred to in rule , (iii) (v) a typed or printed copy of appellant's factum referred to in rule 61.11; file with Registrar, with proof of service,

40 one copy of exhibit book, an electronic version of transcript of evidence, unless court reporter did not prepare (iv) electronic version, an three typed or printed copies of appellant's factum, and where appeal is to be heard (v) five judges, two additional copies, and by an electronic version of appellant's factum; and (c) file with Registrar a stating that appeal book and compendium, exhibit book, transcripts, if any, and (i) factum have been filed, and appellant's (A) name, address and telephone number of party's or or person's lawyer, or Relief from Compliance If it is necessary to do so in interest of justice, a judge of appellate court may give (4) directions and vary rules governing appeal book and compendium, exhibit special Notice of Listing for Hearing When an appeal is perfected, Registrar shall place it on list of cases to be heard at (5) appropriate place of hearing and shall mail a notice of listing for hearing (Form 61G) to (1) The appeal book and compendium shall contain, in consecutively numbered pages numbered tabs arranged in following order, with a copy of notice of appeal and of any notice of cross-appeal or supplementary notice of or cross-appeal; appeal -14- three copies of appeal book and compendium, and where appeal is to be heard by (i) judges, two additional copies, five (ii) (iii) a typed or printed copy of transcript of evidence, (vi) certificate of perfection, setting out, with respect to every party to appeal and any or person entitled by statute (ii) by an order under rule (intervention in appeal) to be heard on appeal, or (B) name, address for service and telephone number of party or or person, if acting in person. O. Reg. 570/98, so 6 (2); O. Reg. 19/03, so 13 (1-3); O. Reg. 260/05, s. 14. book, transcript of evidence and appellant's factum. O. Reg. 19/03, s. 13 (4). every person listed in certificate of perfection. R.R.O. 1990, Reg. 194, r (5). APPEAL BOOK AND COMPENDIUM (a) a table of contents describing each document by its nature and date; (c) a copy of order or decision appealed from as signed and entered;

41 a copy of reasons of court or tribunal appealed from, with a furr typed or printed (d) if reasons are handwritten; copy if an earlier order or decision was subject of hearing before court or tribunal (e) from, a copy of order or decision, as signed and entered, and a copy of any appealed reasons for it, with a furr typed or printed copy if reasons are handwritten; a copy of pleadings or notice of application or of any or document that initiated (f) or defines issues in it; proceeding a copy of any or documents relevant to hearing of appeal that are referred to in (i) factum; appellant's a certificate (Form 61H) signed by appellant's lawyer, or on lawyer's behalf by (I) he or she has specifically authorized, stating that contents of appeal book and someone The exhibit book shall contain, in consecutively numbered pages with numbered tabs in following order, arranged transcripts of evidence used on a motion or application that parties have not agreed to (c) and omit; a copy of each exhibit filed at a hearing or marked on an examination that parties have (d) agreed to omit, arranged in order by date (or, if re are documents with common not grouped accordingly in order by date) and not by exhibit number. O. Reg. 19/03, characteristics, 15. s. (1) The appellant's factum shall be signed by appellant's lawyer, or on lawyer's by someone he or she has specifically authorized, and shall consist of, behalf -15- a copy of any excerpts from a transcript of evidence that are referred to in appellant's (g) factum; (h) a copy of any exhibits that are referred to in appellant's factum; (j) a copy of certificates or agreement respecting evidence referred to in rule 61.05; (k) a copy of any order made in respect of conduct of appeal; and compendium are complete and legible. O. Reg. 19/03, s. 14. The Registrar may refuse to accept an appeal book and compendium if it does not comply se rules or is not legible. O. Reg. 19/03, s. 14. with EXHIBIT BOOK (a) a table of contents describing each exhibit by its nature, date and exhibit number or letter; any affidavit evidence, including exhibits, that parties have not agreed to omit; APPELLANT'S FACTUM Part I, containing a statement identifying appellant and court or tribunal appealed (a) and stating result in that court or tribunal; from

42 Part II, containing a concise overview statement describing nature of case and of issues; Part IV, containing a statement of each issue raised, immediately followed by a concise (d) with reference to law and authorities relating to that issue; argument (e) a that an order under subrule (2) (original record and exhibits) has been obtained or is (i) required, and not how much time (expressed in hours or fractions of an hour) lawyer estimates will be (ii) for his or her oral argument, not including reply; required References to transcript of evidence shall be by tab, page number and line in book and compendium, and references to exhibits shall be by page number in exhibit appeal and by tab and page number in appeal book and compendium. Oo Reg. 19/03, s. 16 book (2). Parts to V shall be arranged in paragraphs numbered consecutively throughout factum. (2) Reg. 534/95, s. 4; O. Reg. 570/98, s. 9 (2). O (1) Every respondent shall, respondent's compendium; three typed or printed copies of respondent's factum, and where appeal is to be heard (i) five judges, two additional copies, and by three copies of respondent's compendium, and where appeal is to be heard by five (ii) two additional copies; and judges, -16- Part III, containing a concise summary of facts relevant to issues on appeal, with (c) reference to transcript of evidence and exhibits as is necessary; such 1) Part V, containing a statement of order that appellate court will be asked to make, (d. any order for costs; including certificate stating, (f) Schedule A, containing a list of authorities referred to; and Schedule B, containing text of all relevant provisions of statutes, regulations and by-laws. (g) Reg. 534/95, s. 4; O. Reg. 570/98, s. 9 (1); O. Reg. 24/00, s. 9; O. Reg. 19/03, s. 16 (1); O. O. Reg. 575/07, ss. 4, 27. RESPONDENT'S FACTUM AND COMPENDIUM Filing and Service (a) serve on every or party to appeal, (i) a typed or printed copy of respondent's factum, and (ii) file with Registrar, with proof of service,

43 Time for Delivery The respondent's factum and compendium shall be delivered within 60 days after service of (2) appeal book and compendium, exhibit book, transcript of evidence, if any, and appellant's Part I, containing a concise overview statement describing nature of case and of (a) issues; Part II, containing a statement of facts in appellant's summary of relevant facts that respondent accepts as correct and those facts with which respondent disagrees, and a summary of any additional facts relied on, with such reference to transcript of concise and exhibits as is necessary; evidence Part III, containing position of respondent with respect to each issue raised by (c) immediately followed by a concise argument with reference to law and authorities appellant, Part IV, containing a statement of any additional issues raised by respondent, (d) of each issue to be followed by a concise argument with reference to law and statement authorities relating to that issue; that an order under subrule (2) (original record and exhibits) has been obtained or is (i) required, and not how much time (expressed in hours or fractions of an hour) lawyer estimates will be (ii) for his or her oral argument, not including reply; required References to transcript of evidence shall be by tab, page number and line in (4) compendium, and references to exhibits shall be by page number in exhibit respondent's Parts to V shall be arranged in paragraphs numbered consecutively throughout factum. (5) Reg. 19/03, s. 17. O (c) file with Registrar an electronic version of respondent's factum. O. Reg. 19/03, s. 17. factum. O. Reg. 19/03, s. 17. Contents of Respondent's Factum The respondent's factum shall be signed by respondent's lawyer, or on lawyer's (3) by someone he or she has specifically authorized, and shall consist of, behalf relating to that issue; Part V, containing a statement of order that appellate court will be asked to make, (e) any order for costs; including (f) a certificate stating, (g) Schedule A, containing a list of authorities referred to; and Schedule B, containing text of all relevant provisions of statutes, regulations and by-laws (h) are not included in Schedule B to appellant's factum. O. Reg. 19/03, s. 17; O. Reg. that 575/07, ss. 4, 28. book and by tab and page number in respondent's compendium. O. Reg. 19/03, s. 17.

44 respondent shall prepare a factum as an appellant by cross-appeal and deliver it with or (a) it in respondent's factum; and incorporate appellant shall deliver a factum as a respondent to cross-appeal within 10 days after of respondent's factum. O. Reg. 19/03, s. 17. service Contents of Respondent's Compendium The respondent's compendium shall contain, in consecutively numbered pages with tabs arranged in following order, numbered a copy of any or documents relevant to hearing of appeal that are referred to in (d) respondent's factum. O. Reg. 19/03, s. 17. Relief from Compliance Motion by Respondent filed proof that a transcript of evidence that parties have not agreed to omit was ordered (a) time prescribed by subrule (5); or within perfected appeal within time prescribed by subrule (1) or by an order of court or a judge of that court, appellate respondent may make a motion to Registrar, on ten days notice to appellant, to have appeal dismissed for delay. R.R.O. 1990, Reg. 194, r (1); O. Reg. 351/94, s Cross-Appeal (6) Where a respondent has served a notice of cross-appeal under rule 61.07, (a) a table of contents describing each document by its nature and date; a copy of any excerpts from a transcript of evidence that are referred to in respondent's factum; (c) a copy of any exhibits that are referred to in respondent's factum; and If it is necessary to do so in interest of justice, a judge of appellate court may give (8) directions and vary rules governing respondent's factum and respondent's special compendium. O. Reg. 19/03, s Revoked: O. Reg. 19/03, s. 18. DISMISSAL FOR DELAY (1) Where an appellant has not,

45 Notice by Registrar filed a transcript of evidence within 60 days after Registrar received notice that (a) has been transcribed; or evidence Registrar may serve notice on appellant that appeal will be dismissed for delay it is perfected within ten days after service of notice. R.R.O. 1990, Reg. 194, r unless Where no transcript of evidence is required for appeal and appellant has not it within time prescribed by subrule (1) or by an order of appellate court perfected a judge of that court, Registrar may serve notice on appellant that appeal will be or for delay unless it is perfected within 10 days after service of notice. O. Reg. dismissed Where appellant does not cure default, (a) in case of a motion under subrule (1), before hearing of motion; or shall serve order on respondent. R.R.O. 1990, Reg. 194, r (3); O. Reg. and s. 6 (2); O. Reg. 168/05, s /95, Where a respondent who has served a notice of cross-appeal has not delivered a factum in cross-appeal within 60 days after service of appeal book and compendium, transcript of and appellant's factum, appellant may make a motion to Registrar, on five evidence notice to respondent, to have cross-appeal dismissed for delay. R.R.O. 1990, Reg. days Where respondent does not deliver a factum in cross-appeal before hearing of (5) motion under subrule (4) or within such longer period as a judge of appellate court On a motion for leave to appeal, where moving party has not served and filed motion and or documents in accordance with subrule (2) or subrules (4) to (6), record responding party may make a motion to Registrar, on 10 days notice to moving to have motion for leave to appeal dismissed for delay. O. Reg. 61/96, s. 8. party, -19- (2) Where appellant has not, perfected appeal within one year after filing notice of appeal, (2); O. Reg. 570/98, s. 12 (1). 554/96, s. 1. Registrar to Dismiss where Default not Cured in case of a notice under subrule (2) or (2.1), within ten days after service of notice, within such longer period as a judge of appellate court allows, Registrar shall make an or in (Form 611) dismissing appeal for delay, with costs fixed at $750, despite rule order Cross-Appeals 194, r (4); O. Reg. 570/98, s. 12 (2); O. Reg. 19/03, s. 19; O. Reg. 55/12, s. 8. Registrar shall make an order in (Form 611) dismissing cross-appeal for delay, allows, costs fixed at $750, despite rule R.R.O. 1990, Reg. 194, r (5); O. Reg. with 394/09, s. 27 (1). Motions for Leave

46 On a motion for leave to appeal, where moving party has not served and filed motion and or documents within 60 days after filing of notice of motion for leave to record unless documents are served and filed within 10 days after service of notice. O. delay 61/96, s. 8. Reg. (8) On a motion for leave to appeal, where moving party, in case of a motion under subrule (6), does not serve and file documents before (a) of that motion, or within such longer period as a judge of appellate court allows; hearing in case of a notice under subrule (7), does not serve and file documents within ten after service of notice or within such longer period as a judge of appellate court days at $750, despite rule R.R.O. 1990, Reg. 194, r (8); O. Reg. 394/09, s. 27 (2). (1) If a transfer or transmission of an appellant's interest or liability takes place while an is pending and no order to continue is obtained within a reasonable time, a respondent appeal If appellant does not obtain an order to continue before hearing of motion or (2) longer period allowed by a judge of appellate court, Registrar shall make an within dismissing appeal for delay, with costs fixed at $750, despite rule O. Reg. order s. 13; O. Reg. 394/09, s /98, (1) A party may abandon an appeal or cross-appeal by delivering a notice of (Form 61K). R.R.O. 1990, Reg. 194, r (1). abandonment A party who serves a notice of appeal or cross-appeal and does not file it within ten days (2) service shall be deemed to have abandoned appeal or cross-appeal, unless court after orders orwise. R.R.O. 1990, Reg. 194, r (2). Where an appeal or cross-appeal is abandoned or is deemed to have been abandoned, (3) or cross-appeal is at an end, and respondent or appellant is entitled to costs of appeal 20- appeal, Registrar may serve notice on moving party that motion will be dismissed for allows, Registrar shall make an order in (Form 61J) dismissing motion for delay, with costs fixed FAILURE TO OBTAIN ORDER TO CONTINUE APPEAL make a motion to Registrar, on 10 days notice to appellant, to have appeal may for delay. O. Reg. 570/98, s. 13. dismissed ABANDONED APPEALS Defivery of Notice of Abandonment Deemed Abandonment Effect of Abandonment appeal or cross-appeal, unless a judge of appellate court orders orwise. R.R.O. 1990, 194, r (3). Reg.

47 (1) Where an appeal is dismissed for delay or is abandoned, a respondent who has may, cross-appealed Where respondent does not deliver a notice of election to proceed within fifteen days, (2) shall be deemed to be abandoned without costs unless a judge of appellate cross-appeal court orders orwise. R.R.O. 1990, Reg. 194, r (2). Rule 37 Appfies Generally (1) Rule 37, except rules to (jurisdiction to hear motions, place of hearing, to to be made) and rule (motion before commencement of proceeding), applies to whom motions in an appellate court, with necessary modifications. O. Reg. 263/03, s. 6 (1). A motion under clause 134 (4) of Courts of Justice Act (motion to receive furr shall be made to panel hearing appeal. R.R.O. 1990, Reg. 194, r (2). evidence) Motions Required to be Heard by One Judge A motion required by subsection 7 (2) or 21 (3) of Courts of Justice Act to be heard and by one judge may be heard and determined by a panel hearing an appeal or determined A motion in Court of Appeal for an order that finally determines an appeal, or than (2.2) order dismissing appeal on consent, shall be heard and determined by a panel consisting an not fewer than three judges sitting toger, and always of an uneven number of judges. O. of 570/98, s. 14. Reg. Motion to be Heard by More Than One Judge Where a motion in an appellate court is to be heard by more than one judge, notice of (3) shall state that motion will be heard on a date to be fixed by Registrar. R.R.O. motion (3.1) Revoked: O. Reg. 263/03, s. 6 (2). Certificate of Estimated Time for Argument The notice of motion shall contain a certificate stating how much time (expressed in hours fractions of an hour) lawyer estimates will be required for his or her oral argument, not or -21 CROSS-APPEAL WHERE APPEAL DISMISSED FOR DELAY OR ABANDONED (a) within fifteen days reafter, deliver a notice of election to proceed (Form 61L); and make a motion to a judge of appellate court for directions in respect of cross-appeal. 1990, Reg. 194, r (1). R.R.O. MOTIONS IN APPELLATE COURT Motion to Receive Furr Evidence anor motion in proceeding properly made to panel. O. Reg. 770/92, s. 15. Motions Required to be Heard by Panel 1990, Reg. 194, r (3). including reply. O. Reg. 333/96, s. 3 (2); O. Reg. 575/07, s. 4.

48 shall serve a motion record that contains documents referred to in subrule (2) and a (i) consisting of a concise argument stating facts and law relied on by moving party, factum may, if of opinion that moving party's motion record is incomplete, serve a motion (i) that contains documents referred to in subrule (3), record shall file three copies of responding party's motion record and factum, with proof of (iii) within 25 days after service of moving party's motion record and factum; and service, a party who intends to refer to a transcript of evidence at hearing shall ensure that it is (c) in motion record. O. Reg. 263/03, s. 6 (3). included A person affected by an order or decision of Registrar may make a motion to a judge of (5) appellate court to set it aside or vary it by a notice of motion that is served forthwith after or decision comes to person's attention and names first available hearing date that order at least three days after service of notice of motion. R.R.O. 1990, Reg. 194, r (5). is A person who moves to set aside or vary order of a judge of an appellate court under (6) 7 (5) or 21 (5) of Courts of Justice Act shall do so by a notice of motion that is subsection If moving party has not served and filed motion record and or documents in (7) with subrule (4), accordance Registrar may serve notice on moving party that motion will be dismissed for unless motion record and or documents are served and filed within 10 days after delay service of notice. O. Reg. 263/03, s. 6 (4). 22 Motion Record and Factum On a motion referred to in subrule (3), (a) moving party, and shall file three copies of moving party's motion record and factum, with proof of service, (ii) 30 days after filing notice of motion; within responding party, shall serve a factum consisting of a concise argument stating facts and law relied on by (ii) responding party, and Review of Registrar's Order Review of Single Judge's Order within four days after order is made and states that motion will be heard on a served to be fixed by Registrar. R.R.O. 1990, Reg. 194, r (6). date Registrar to Dismiss for Delay responding party may make a motion to Registrar, on 10 days notice to moving (a) to have motion dismissed for delay; party,

49 The Registrar shall make an order in Form 61J.1 dismissing motion for delay, with costs (8) at $750, despite rule 58.13, if moving party, fixed in case of a motion under clause (7) (a), does not serve and file motion record and (a) documents before hearing of that motion, or within such longer period as a judge of or appellate court allows; in case of a notice under clause (7), does not serve and file motion record and documents within 10 days after notice is served, or within such longer period as a or (1) Subrules (2) to (10) apply to an appeal that is made to a judge, from an interlocutory order of a master or case management master, under clause 17 (a) of (a) Courts of Justice Act; from a certificate of assessment of costs, under clause 6 (1) (c) or 17 or subsection 90 of that Act; or (4) under any or statute, unless statute or a rule provides for anor procedure. R.R.O. (c) Reg. 194, r (1); O. Reg. 438/08, s. 49 (1). 1990, Time For Appeal An appeal shall be commenced by serving a notice of appeal (Form 62A) on all parties (2) interests may be affected by appeal, within seven days after making of order whose or certificate appealed from. R.R.O. 1990, Reg. 194, r (2); O. Reg. 14/04, s. 33 (1). The notice of appeal shall name first available hearing date that is not less than seven (3) after date of service of notice of appeal, and rule (hearing date for motions) days Notice of Appeal leave of judge hearing appeal. R.R.O. 1990, Reg. 194, r (4). The notice of appeal shall be filed in court office where appeal is to be heard, with (5) of service, not later than seven days before hearing date. R.R.O. 1990, Reg. 194, r. proof (5); O. Reg. 171/98, s. 22 (1); O. Reg. 438/08, s. 49 (2). 23 judge of appellate court allows. O. Reg. 263/03, s. 6 (4); O. Reg. 394/09, s. 29. PROCEDURE ON APPEAL Application of Rule Hearing Date applies, with necessary modifications. R.R.O. 1990, Reg. 194, r (3). The notice of appeal (Form 62A) shall state relief sought and grounds of appeal, and (4) grounds or than those stated in notice may be relied on at hearing, except with no

50 Place of Hearing The appeal shall be heard at a place determined in accordance with rule (place of (6) of motions). R.R.O. 1990, Reg. 194, r (6). hearing The appellant shall, not later than seven days before hearing, serve on every or party (7) file, with proof of service, in court office where appeal is to be heard, an appeal and record containing, in consecutively numbered pages arranged in following order, a table of contents describing each document, including each exhibit, by its nature and date (a) in case of an exhibit, by exhibit number or letter; and, a copy of notice of appeal; such or material that was before judge or officer appealed from as is necessary for (d) hearing of appeal, a factum consisting of a concise argument stating facts and law relied on by and R.R.O. 1990, Reg. 194, r (7); O. Reg. 171/98, s. 22 (2); O. Reg. 206/02, s. 17 appellant. (8) The respondent shall serve on every or party, at least four days before hearing, a factum consisting of a concise argument stating facts and law relied on by (a) and respondent; any furr material that was before judge or officer appealed from and is necessary for hearing of appeal. O. Reg. 14/04, s. 33 (2); O. Reg. 438/08, s. 49 (4). The respondent's factum, and any furr material, shall be filed with proof of service in (8.1) office where appeal is to be heard, at least four days before hearing. O. Reg. court Abandoned Appeals Rule applies, with necessary modifications, to abandonment of an appeal under (10) rule. R.R.O. 1990, Reg. 194, r (10). this Leave to Appeal from Interlocutory Order of a Judge (1) Leave to appeal to Divisional Court under clause 19 (1) of Act shall be from a judge or than judge who made interlocutory order. O. Reg. 171/98, s. obtained 23 (1). 24 Appeal Record a copy of order or certificate appealed from, as signed and entered, and reasons, if (c) as well as a furr typed or printed copy of reasons if y are handwritten; and any, (1); O. Reg. 438/08, s. 49 (3). 171/98, s. 22 (3); O. Reg. 438/08, s. 49 (5). A judge may dispense with compliance with subrules (7) and (8), in whole or in part, before (9) at hearing of appeal. R.R.O. 1990, Reg. 194, r (9). or MOTION FOR LEAVE TO APPEAL

51 If motion for leave to appeal is properly made in Toronto, judge shall be a judge of (1.1) Divisional Court sitting as a Superior Court of Justice judge. O. Reg. 171/98, s. 23 (1); O. The notice of motion for leave shall be served within seven days after making of (2) from which leave to appeal is sought or such furr time as is allowed by judge order The notice of motion for leave shall name first available hearing date that is at least three (3) after service of notice of motion. R.R.O. 1990, Reg. 194, r (3). days re is a conflicting decision by anor judge or court in Ontario or elsewhere on matter (a) in proposed appeal and it is, in opinion of judge hearing motion, involved desirable that leave to appeal be granted; or re appears to judge hearing motion good reason to doubt correctness of in question and proposed appeal involves matters of such importance that, in his or order her opinion, leave to appeal should be granted. R.R.O. 1990, Reg. 194, r (4). On a motion for leave, requirement of rule respecting a motion record may be (5) by, satisfied requisitioning that motion record used on motion that gave rise to order from (a) leave to appeal is sought be placed before judge hearing motion for leave; and which serving and filing a supplementary motion record containing notice of motion for leave to a copy of order from which leave to appeal is sought and a copy of any reasons appeal, for making of order as well as a furr typed or printed copy of reasons if y given handwritten. RoR.O. 1990, Reg. 194, r (5). are Factums Required On a motion for leave, each party shall serve on every or party to motion a factum of a concise argument stating facts and law relied on by party. O. Reg. 14/04, consisting so 34 (2). motion is to be heard at least seven days before hearing. O. Reg. 394/09, s. 30 where (1). The responding party's factum shall be served and filed with proof of service in court (6.2) where motion is to be heard at least four days before hearing. O. Reg. 394/09, s. office 30 (2). 25 Reg. 292/99, s. 2 (2). Time for Service of Motion hearing motion. R.R.O. 1990, Reg. 194, r (2); O. Reg. 14/04, s. 34 (1). Hearing Date Grounds on Which Leave May Be Granted Leave to appeal shall not be granted unless, Motion Record The moving party's factum shall be served and filed with proof of service in court office

52 The judge granting leave shall give brief reasons in writing. R.R.O. 1990, Reg. 194, r (7) (7). Where leave is granted, notice of appeal required by rule 61.04, toger with (8) certificate respecting evidence required by subrule (1), shall be delivered appellant's seven days after granting of leave, and reafter Rule 61 applies to appeal. within 1990, Reg. 194, r (8). R.R.O. unless orwise provided. R.S.O. 1990, c. C.43, s. 108 (1); 1996, c. 25, s. 9 (17). Trials without jury 2. Partition or sale of real property. 5. Foreclosure or redemption of a mortgage. 6. Sale and distribution of proceeds of property subject to any lien or charge. 26 (6.3) Revoked: O. Reg. 394/09, s. 30 (3). Reasons for Granting Leave Subsequent Procedure Where Leave Granted Jury trials (1) In an action in Superior Court of Justice that is not in Small Claims Court, a 108, may require that issues of fact be tried or damages assessed, or both, by a jury, party The issues of fact and assessment of damages in an action shall be tried without a jury 2. respect of a claim for any of following kinds of relief: in 1. Injunction or mandatory order. 3. Relief in proceedings referred to in Schedule to section Dissolution of a partnership or taking of partnership or or accounts. 7. Execution of a trust. 8. Rectification, setting aside or cancellation of a deed or or written instrument. 9. Specific performance of a contract. 10. Declaratory relief. 11. Or equitable relief. Relief against a municipality. R.S.O. 1990, c. C.43, s. 108 (2); 1994, c. 12, s. 41; 2006, c. 12. Sched. A, s ,

53 On motion, court may order that issues of fact be tried or damages assessed, or both, (3) a iury. R.S.O. 1990, c. C.43, s. 108 (3). without Where a proceeding is tried with a jury, jury shall be composed of six persons selected in (4) with Juries Act. R.S.O. 1990, c. C.43, s. 108 (4). accordance Verdicts or questions (5) Where a proceeding is tried with a jury, answer. R.S.O. 1990, c. C.43, s. 108 (6). The judge presiding at a trial may discharge a juror on ground of illness, hardship, (7) or or sufficient cause. R.S.O. 1990, c. Co43, s. 108 (7). partiality Continuation with five jurors Where a juror dies or is discharged, judge may direct that trial proceed with five (8) in which case verdict or answers to questions must be unanimous. R.S.O. 1990, c. jurors, Where a proceeding to which subsection 193 (1) of Highway Traffic Act applies is tried a jury, judge may direct jury to specify negligent acts or omissions that caused with or injuries in respect of which proceeding is brought. R.S.O. 1990, c. C.43, s. 108 damages (9). Malicious prosecution In an action for malicious prosecution, trier of fact shall determine wher or not re (10) reasonable and probable cause for instituting prosecution. R.S.O. 1990, c. C.43, s. 108 was 27 Idem Composition of jury judge may require jury to give a general verdict or to answer specific questions, (a) to section 15 of Libel and Slander Act; and subject judgment may be entered in accordance with verdict or answers to questions. 1990, c. C.43, s. 108 (5). R.S.O. Idem It is sufficient if five of jurors agree on verdict or answer to a question, and where than one question is submitted, it is not necessary that same five jurors agree to every more Discharge of juror at trial C.43, s. 108 (8). Specifying negligent acts (10).

54 A party to an arbitration may appeal an order of an arbitrator to Director only on 50.1 question of law. a A party may not appeal a preliminary or interim order of an arbitrator until all of 50.2 in dispute in arbitration have been finally decided, unless Director orders issues An appeal does not stop an arbitration order from taking effect, unless Director 50.3 orwise. orders Subject to Rule 52.2, appellant must file Notice of Appeal within 30 days of 52.1 of arbitration order. date The Director may extend time for requesting an appeal on such terms as he or she 52.2 appropriate, eir before or after 30-day time limit, if he or she is satisfied re considers 28 PART 4 APPEAL OF ARBITRATION ORDER 50oAPPEAL orwise. TIME FOR APPEAL are reasonable grounds for granting extension

55 Financial Services Dispute Notice of Appeal Ontario Services Form of Yonge Street 5160 ALL sections. Complete extra sheets if necessary. Attach APPELLANT Mr, Company name OR Last name First name Middle name [] Mrs. [] Ms. [] Mrs. i[] Ms.![] Firm name Phone number Ext. Fax number address (required) representative is: The Lawyer Law Society licence number [] Commission Resolution Box 85 Toronto ON M2N 6L9 Ontario Commission file number ARBITRATION DECISION DETAILS Insurer(s) Applicant Date of Arbitration decision (yyyy/mm/dd) Arbitrator /rbitration file number A Street address Apt./Unit City Province/State Postal Code/Zip Country Home phone number Work phone number Ext. Fax number address APPELLANT'S REPRESENTATIVE Last name First name File reference number :Title Street address Apt./Unit City Province/State Postal Code/Zip Country Licensed paralegal Law Society licence number [] Not required to be licensed [] type of exemption from list of exemptions recognized Specify in Law Society's by-laws Form Updated ( ) FSCO (1129E.1) Page of

56 Arbitration recorded? Was No [] [] Yes Are you ordering a No [] Yes [] Appeal. [] Extra sheets attached [] Extra sheets attached Yes, you must inform or party and arrange for a transcript copy to be provided to him/her If Director's Delegate. State when you expect to receive transcript. and [] Extra sheets attached REASONS FOR THE APPEAL Briefly explain reasons for your appeal (questions of law only). ACTIONS SOUGHT FROM THE APPEAL Briefly explain what outcome or result you are looking for in TRANSCRIPTS transcript of hearing? If No, briefly explain why a transcript is not needed for Appeal. Updated ( Form FSCO (1129E.1) Page 2 of 3

57 Are you asking for a No [] Yes [] No [] Yes [] If Yes, briefly explain why you are asking for a Stay. Your reasons should be as complete as [] Extra sheets attached Yes, briefly explain why you should be permitted to appeal a preliminary or If order. Your reasons should be as complete as possible. interim [] Extra sheets attached any evidence that you intend to rely on that was not part of Arbitration hearing. Explain why this evidence is necessary. Your explanation List be as complete as possible. should Appellant Name (please print) Title [] Representative [] [] Extra sheets attached Date (yyyy/mm/dd) [] Cheque Signature money Total number of extra or enclosed sheets attached order FSCO (1129E.1) Page 3 of 3 STAY OF THE ARBITRATION ORDER Stay of Arbitration Order? possible. APPEAL FROM A PRELIMINARY OR INTERIM ORDER Are you asking for an Appeal of a Preliminary or Interim Order? EVIDENCE SIGNATURE AND CERTIFICATION certify that all Mformation in this Notice of Appeal and attachments is true and complete. realize that copies of all information filed with this Notice of Appeal will be given to or party in this dispute. Form Updated ( )

58 '1' Ontario Services Financial Commission Ontario of Yonge Street Box ON M2N 6L9 Toronto of Appeal Notice Form For Completing Dispute Resolution Guide (DRS) Forms Services this form to appeal an Arbitration decision. Appeals Use only allowed on questions of law. are must file your completed Notice of Appeal with You Services Commission of Ontario ( Financial at address below, within 30 days of "Commission") date of arbitration order you wish to appeal. The of Arbitrations may extend time based on Director for delay and apparent strength of reasons information requested on this form is collected Personal authority of Insurance Act, R.S.O. 1990, under as amended. This information, including documents c.l.8, with this application, will be used in dispute submitted process for accident benefits. This information resolution be available to all parties to proceeding. Any will about this collection of information may be questions to Director of Arbitrations, Dispute Resolution directed you have any questions or want more information, If contact: Unit Appeals Resolution Services Dispute Services Commission of Ontario Financial Yonge Street, 15th Floor, Box Commission website: Dispute Resolution Services appeal. The steps you must take are set out in this form. Services, at address below. Toronto ON M2N 6L9 In Toronto: (416) Toll Free: , extension 7222 Fax: (416) Resolution Services- Guide for Form (2008/05/01) Dispute of 2 Page

59 order. If Notice of Appeal is incomplete, it may be Arbitration After completing form, you must serve a copy on rejected. ( or party). If respondent was represented at respondent hearing by a lawyer, you should serve Notice of Appeal arbitration may be done by personal delivery, courier, fax, regular mail, Service mail or any or method allowed by Dispute Resolution registered file following with Commission: Then Notice of Appeal Completed Statement of Service form stating when and how Original served respondent with Notice of Appeal you receiving a properly completed Notice of Appeal, Statement of Upon and application fee, Commission will promptly Service oppose your appeal, respondent must file a Response to To within 20 days of receiving acknowledgement of appeal Appeal Commission. You will get a copy of Response to Appeal from respondent. from Director of Arbitrations or an adjudicator delegated by Unless (known as Director's Delegate) advises you differently, your Director submissions must be served on respondent and filed with written Commission within 30 days of date Response to Appeal due. If a transcript is ordered, this time limit is extended to 30 was from receipt of transcript. days Director or Director's Delegate may decide appeal with or The a hearing. without How to Complete Notice of Appeal in completely. Provide any alternative addresses, phone numbers, Fill numbers or electronic mail addresses that will make it easier for us fax to contact you. may choose to have someone represent you. Although many You are represented by a lawyer in an appeal, a lawyer is not people If you have a representative, fill in name, address and required. number of your representative. If it is a firm, please give phone of firm in box provided. A minor (a person under name of 18) or a person who has been declared mentally incapable, age must have a Reasons for Appeal involve a question of law, it may be rejected. state what part(s) of Arbitration order you are appealing and Briefly of law you claim arbitrator made. Attach extra sheets if error(s) party to respond. It is not necessary, however, for you to file your or written submissions until later. complete Action Sought Indicate if Arbitration hearing was recorded by a was recorded, indicate if you have ordered a transcript of hearing. it you do not intend to order a transcript, you must state why a transcript If not needed for appeal. effect. If you are asking that Arbitration order not go into taking you must explain why usual rule should not apply. effect, is likely that stay will be decided without furr submissions, so It reasons should be as complete as possible. your Appeal from a usual rule is that a party may not appeal a preliminary or interim The of an arbitrator until all of issues in arbitration dispute have order finally decided. If you are seeking to appeal a preliminary or been order, you must explain why usual rule should not apply. interim is likely that this issue will be decided without furr submissions so It reasons should be as complete as possible. your are usually decided based on evidence presented at Appeals hearing. The Director's Delegate will have access to arbitration you want to rely on any additional or new evidence documents or If you must explain what evidence is and why it should be witnesses appeal. issue may be decided without furr submissions so your This should be as detailed as possible. explanation you are an insured person, be sure to enclose filing fee of $250 If cheque or money order made out to MINISTER OF FINANCE. by you are an insurer, Commission will invoice your company for If filing fee ($250) and insurer assessment ($500). You may settle your dispute with respondent directly at any Note: during appeal process. time an Arbitration Decision Appealing a complete set of rules for appeals, see Dispute For your appeal does not Appeals are only available on questions of law. If Resolution Practice Code. Step necessary. Your Notice of Appeal must be sufficiently detailed to allow Notice of Appeal form within 30 days of date of Complete this lawyer. If not, serve respondent. on your appeal. Briefly state remedy or outcome you are seeking in Transcript Practice Code. reporting service. If is Stay The fee The usual rule is that an appeal does not stop Arbitration order from Step 2 acknowledge appeal. Step 3 Preliminary or Interim Order Step 4 Evidence arbitration exhibits and, refore, it is not necessary to refile m. Step 5 allowed in PLEASE PRINT Signature Sign form and return it to Appeals Unit at Commission. Arbitration Decision Details Fee This information can be found in arbitration decision. Applicant's Name and Address not enclosed. The application will be rejected if filing fee is Appellant's Representative representative. Resolution Services Guide for Form (2008/05/01) Dispute 2 of 2 Page