Part Two: Responding to an appeal

Inside this guide:

Introduction
Part One: Starting an appeal
Part Two: Responding to an appeal
Part Three: Hearing the application for leave to appeal
Part Four: Hearing the appeal
Part Five: Procedures where a stay of a driving prohibition is sought

Quick Reference Chart: Documents Filed in appeals at the Court of Appeal

Part Two: Responding to an Appeal

What responding materials need to be served and filed?

The respondent must serve one copy of the Respondent’s Factum on the appellant and any other parties to the appeal. The respondent must then must file three copies of the Respondent’s Factum with proof of service with the Registrar. The respondent should also file an electronic copy of the factum. The electronic copy can be filed by attaching it to an e-mail sent to COA.E-file@ontario.ca. The e-mail subject line should include the name of the case and the file number and the type of document being filed. Further instructions are available online. The electronic copy of the factum may also be filed using other forms of electronic media (e.g., USB key).

The respondent may also serve and file a Respondent’s Appeal Book. The respondent may file a Respondent’s Book of Authorities. The content and format of these documents are described below. There is no fee to file any of these materials.

When must the responding materials be filed?

The Respondent’s Factum must be filed with proof of service within 60 days of the date that the appellant’s factum was filed, unless the parties consent to an extension of time or a judge of the Court of Appeal agrees to extend the time for filing.

Respondent’s Factum

The Respondent’s Factum must consist of the following parts:

1. Part I, with the caption “Respondent’s Statement as to the Facts”, containing a statement of the facts in Part II of the appellant’s factum that the respondent accepts as correct or substantially correct and those facts with which the respondent disagrees, and a concise summary of any additional facts relied on, with such reference to the transcript of evidence by page and line as is necessary
2. Part II, with the caption “Response to the Appellant’s Issues”, and containing the respondent’s position and the factors relevant to the issue whether leave to appeal should be granted. Part III should also include a statement of the respondent’s position with respect to the issues raised by the appellant on the appeal, immediately followed by a concise statement of the law and authorities relating to each issue
3. Part III, with the caption “Additional Issues”, and containing a statement of any additional issue(s) the respondent wishes to raise on the leave application or the appeal, immediately followed by a concise statement of the law and the authorities relating to that issue
4. Part IV, with the caption “Order Requested”, and containing a statement of the order that the court is asked to make in relation to the application for leave to appeal and the appeal
5. Schedule A, with the caption “Authorities to be Cited”, and containing a list of the authorities referred to, with citations, in the order in which they appear in Parts II and III or in alphabetical order
6. Schedule B, with the caption “Relevant Legislative Provisions” setting out the text of all relevant statutes except any provisions from the Criminal Code and the Youth Criminal Justice Act

Each paragraph in Parts I-IV of the factum must be numbered.

Respondent’s Appeal Book

The respondent may serve and file a Respondent’s Appeal Book if there are documents that are not found in the Appeal Book filed by the appellant that were part of the trial record and/or the record before the Superior Court of Justice and which are relevant to the hearing of the proposed appeal. A Respondent’s Appeal Book is not required if all of the documents relevant to the proposed appeal are included in the Appellant’s Appeal Book.

Please note that a respondent is not permitted to file evidence that was not part of the record introduced at trial and/or at the appeal to the Superior Court of Justice without the permission of a panel of the Court of Appeal for Ontario. See s. 7.3.5 of the Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario for a discussion of the procedures for seeking permission to file fresh evidence.

The Respondent’s Appeal Book must be bound front and back in buff coloured covers. The respondent must serve one copy of the Respondent’s Appeal Book on the appellant and any other parties to the appeal. The respondent must then file three paper copies of the Respondent’s Appeal Book with the Registrar with proof of service.

The pages of the Respondent’s Appeal Book must be consecutively numbered, with numbered tabs arranged in the following order:

1. a table of contents describing each document by its nature and date
2. a copy of any excerpts from the transcript of evidence that are referred to in the respondent’s factum
3. a copy of any exhibits that are referred to in the respondent’s factum
4. a copy of any other documents relevant to the hearing of the appeal that are referred to in the respondent’s factum

Book of Authorities

It is helpful, although not required, for the respondent to file a Book of Authorities.

The Respondent’s Book of Authorities must be bound front and back in green covers. The respondent must file with the court three copies of the Respondent’s Book of Authorities.

The Respondent’s Book of Authorities should include only cases that the respondent has referred to in the factum and that are not found in the Appellant’s Book of Authorities.

The Book of Authorities should include a tab for each case (either numerical or alphabetical), and should include a table of contents of the cases and indicate the tab where the case is reproduced. The respondent should mark with highlighting, underlining or sidebars the particular passages in the cases that the party is relying on.

The Respondent’s Book of Authorities should be filed no later than five business days after the date on which the Respondent’s Factum is filed.