For the appellant, civil appeals present significant challenges.
Having already lost at the lower Court level, the appellant in Ontario bears the sizeable burden of having to persuade a panel of at least three judges that the previous judge or tribunal fell into error. This is no easy feat.
That said, appellate Courts will reverse in the face of legal error or, typically, where there has been a breach of procedural fairness.
What appellate judges will not do is revisit the record and re-try the case: appeals based solely on factual errors rarely succeed, unless the lower Court's analysis of the evidence was so faulty as to warrant serious scrutiny.
Below is a list of some of the most important strategic considerations that need to be considered before undertaking a challenge to a previous judicial or tribunal decision.
1. Challenge Law, Not Facts.
For most civil appeals in Ontario, the Courts apply two standards of review:
- "correctness", which is the less deferential standard applicable to questions of law, including legal principles extricable from questions of mixed fact and law; or
- the highly deferential standard of "palpable and overriding error" for questions of fact or questions of mixed fact and law (where there is no extricable question of law), including with respect to the application of correct legal principles to the facts.
It is difficult to prove a "palpable and overriding error". This is an "obvious error that is sufficiently significant to vitiate the challenged finding". In order words, the appellant must show that the error "goes to the root of the challenged finding such that it cannot safely stand in the face of the error".[2]
Given the lack of deference applied by the appellate Court when assessing a purported "palpable and overriding error", appeals that are based solely on fact or on the application of well-settled legal principles to the facts will likely not succeed. The role of the appeal Court is not to reconduct a trial or re-weigh the evidence.
As such, the easiest way to challenge a decision on appeal is to advance legal error or breaches of procedural fairness in the underlying proceeding.
2. Identify the Standard of Review.
As set out above, the standards of review of "correctness" and "palpable and overriding error" are the legal lenses through which the appellate Court views the underlying order.
Failing to identify the lens leaves the appellate panel to figure out the standard of review on its own. Not only will this waste Court resources and frustrate the panel, it will signal to the appellate Court that you do not understand their role in reviewing the impugned decision.
Without an identified standard of review, an appeal is fundamentally misconceived.
3. Stick to the Underlying Record.
Appeals are not a chance to try your case twice. An appeal is not a hearing de novo.
This means that appellate Courts don't look favourably on efforts to bolster the record with fresh evidence, particularly if that evidence was available at first instance. The record on appeal remains the record that was before the original Court or tribunal.
In rare circumstances, parties will be granted leave to admit fresh evidence on appeal.
The test for leave is stringent and involves a consideration of the following factors:
- Admissibility: is the evidence admissible under the governing rules of evidence?
- Cogency: is the evidence sufficiently cogent in that it could reasonably be expected to have affected the outcome of the decision under appeal; and
- Due diligence: what is the explanation offered for the failure to adduce the evidence and should that explanation affect the admissibility of the evidence?[3]
Most fresh evidence will not satisfy all three requirements above.
Appellants should be wary of bringing motions for fresh evidence unless there is a valid reason for doing so.
Such motions risk undermining your position on the merits and wasting scarce judicial resources.
4. Choose 2 to 3 Issues to Appeal, tops.
Because appeals are not de novo hearings and are typically limited to questions of law, they do not constitute an opportunity to advance multiples grounds of appeal.
Most of the time, a concise, focused appeal on two to three issues will win favour over a "spaghetti against the wall" approach.
It is always better to spend time and energy on fundamental errors by the lower Court than to advance a thorough re-rendering of your case. This is especially true where appeals lose focus by dwelling on immaterial, frivolous findings of fact that would have not changed the outcome of the underlying order.
5. Determine if the Underlying Order Needs to be Stayed.
Launching an appeal does not necessarily stay the underlying Order, which will take effect immediately upon its issuance by the lower Court.
The governing statute or Rule 63 of Ontario's Rules of Civil Procedure[4] usually govern the complex regime regarding whether the underlying order is automatically stayed pending an appeal or whether the appellant requires leave of the Court to stay the underlying order. If the latter, the appellant will be required to bring a motion to stay the order, typically before a single judge of the appellate court.
In deciding whether to grant a stay in civil appeals, the appeal Court usually considers whether:
- There are serious issues to be tried on appeal (i.e., the appeal is not frivolous or an effort to delay the case);
- Compliance with the order under appeal will cause irreparable harm; and
- What the balance of convenience is in granting or denying the stay.[5]
Alternatively, the parties can agree to stay the underlying order pending appeal, such that even if the stay is not automatic, the respondent effectively agrees not to enforce the underlying order until the appeal is entirely disposed of.
Proceed with Caution
Civil appeals represent a specialized form of advocacy.
Trial lawyers or those who argued the underlying proceeding may not be the best equipped to take on an appeal of their matter.
Sometimes, having a fresh set of eyes to evaluate the merits of appeal can prove invaluable.
Footnotes
1. Housen v. Nikolaisen, 2002 SCC 33 at paras. 8, 10, 19 and 26-37, as cited recently in First Walden Holdings Inc. v. Fenton, 2025 ONSC 4355 (Div. Ct.).
2. First Walden Holdings Inc. v. Fenton, supra at para. 31, citing Longo v. MacLaren Art, 2014 ONCA 526 and Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.) at para. 297, leave to appeal to the Supreme Court of Canada denied [2004] S.C.C.A. No. 291.
3. Brodsky v. College of Nurses of Ontario, 2025 ONSC 3422 (Div. Ct.), per Edwards J., citing R. v. Palmer, [1980] 1 S.C.R. 759.
4. R.R.O. 1990, Reg. 194.
5. RJR MacDonald v. Canada (AG) (1994), 54 C.P.R. (3d) 114; see also Ernst & Young Inc. v. Aquino, 2022 ONCA 472.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
