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How does the Divisional court work in Ontario?

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Overview

The Divisional Court is a branch of the Superior Court of Justice of Ontario. It is an appeal court, not a trial court. It hears appeals and applications for judicial review.

The Divisional Court may hear the following types of appeals. On this page, we have described the various types of appeals that the Divisional Court hears.

1. Appeals from Final Orders of Judges

Under sections 19(1) and 19(1.2) of the Courts of Justice Act, an appeal goes to the Divisional Court from a “final order” of a judge of the Superior Court of Justice regarding any of the following:

  • for a single payment of $50,000 or less, excluding costs;
  • for periodic payments that amount to $50,000 or less for the 12 months starting on the date the first payment is due, excluding costs;
  • dismissing a claim for $50,000 or less; or
  • dismissing a claim for more than $50,000 where the judge or jury indicates that if the claim had succeeded, they would have awarded $50,000 or less.

2. Appeals from Interlocutory Orders

nterlocutory orders are orders that are not final. Under section 19(1) of the Courts of Justice Act, an appeal from an interlocutory order of a judge of the Superior Court of Justice goes to the Divisional Court only after the party who wants to appeal gets “leave” (permission) of the court to do so. A motion must be brought asking the court for permission to bring the appeal.

3. Appeals from Masters' Orders

Under section 19(1) of the Courts of Justice Act, an appeal from a final order of a master or case management master goes to the Divisional Court.

4. Combined Appeals from the Superior Court of Justice

According to O. Reg. 626/00 Small Claims Court Jurisdiction and Appeal Limit under the Courts of Justice Act, an appeal goes to the Divisional Court from a final order of the Small Claims Court in an action:

  • for the payment of money in excess of $3,500, excluding costs; or
  • for the recovery of possession of personal property exceeding $3,500 in value

5. Appeals from a Final Order of the Small Claims Court

If the case is brought in the cities of Toronto, Ottawa or Essex County (Windsor), then Rule 75.1.02 of the Rules indicate that the parties must attend to settle their matter with the assistance of a mediator. This is known as Alternative Dispute Resolution. Such a meeting will be reported to the Courts, and documents will need to be filed indicating the successful completion of the mediation. The meeting is also required to take place within 120 days of the filing of the Statement of Defence. Many cases settle out of Court during mediation.

6. Statutory Appeals

The appeals described above are provided for in the Courts of Justice Act. However, other Ontario legislation also provides for appeals to the Divisional Court from the decisions of various tribunals and statutory decision makers. For example:

  • Compensation for Victims of Crime Act,​
  • Health Insurance Act,
  • Residential Tenancies Act, 2006
  • Many statutes relating to professional disciplinary matters also provide for appeals to the Divisional Court. For example:
  • Architects Act,
  • Ontario College of Teachers Act, 1996,
  • Police Services Act,
  • Regulated Health Professions Act, 1991

It is necessary to read the specific legislation before deciding whether an appeal to the Divisional Court is the correct appeal route.

7. Appeals from the Family Court

During the trial, the Plaintiff’s lawyer will attempt to prove their case on a balance of probabilities, but he or she does not need to prove the case beyond a reasonable doubt in the way that the Crown must in a Criminal trial. The parties may call witnesses to testify and give evidence, and each party is entitled to cross examine the other party’s witnesses. The completion of this stage usually marks the last major proceeding in a case; however, sometimes a party may wish to appeal the Judge’s decision to the Ontario Court of Appeal (ONCA). However, this is a lengthy process and not all cases are granted leave to appeal or, in other words, the ONCA does not always agree to hear every appeal that is sought.

Who hears Divisional Court appeals?

In general, the Divisional Court sits in panels of three judges of the Superior Court of Justice. However, in some circumstances, Divisional Court hearings may be held before a single judge. These circumstances can include:

  • motions in the Divisional Court, including motions for leave to appeal;
  • urgent or expedited matters;
  • appeals from a final order of a master or case management master; or
  • appeals from a final order made in Small Claims Court.

How much will it cost for a lawyer to represent me in Divisional Court?

As the Divisional Court is an appellate court, we charge standard hourly rates to represent appellants and respondents in this level of Court. We charge a minimum initial retainer fee of $5,000 plus HST. This fee can be paid online by credit card. To book a telephone call with a lawyer who can represent you in Divisional Court, click here.

Click here to read an example of one of our successful cases in the Divisional Court.