Consolidated Practice Direction for Divisional Court Proceedings

IMPORTANT NOTICE

This notice has been superseded by Chief Justice Morawetz. Please see the Notices and Orders tab and for current information.

Notice of Amendments:

Effective May 17, 2019,

• Paragraphs 2 and 10 are amended to reflect January 2019 amendments to Rule 62.02 of the Rules of Civil Procedure.
• Part I is amended to clarify where documents should be filed when a matter is to be heard by a single judge. 
• Part VII is amended to clarify where documents should be filed when a matter is to be heard by a panel.

On December 7, 2018, new requirements for motions for leave to appeal to the Divisional Court were added to Part II.

Effective July 1, 2017: A new Part II was created regarding motions for leave to appeal to Divisional Court (Part III to VII have been renumbered). As of July 1, 2017, rule 62.02 requires that leave to appeal to the Divisional Court under clause 19 (1) (b) of the Courts of Justice Act, regarding appeals of interlocutory orders of a judge, shall be obtained from a panel of that court, rather than by a single judge. Three printed copies of materials for motions for leave to appeal must now be filed in at the Divisional Court Office in Toronto.

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Effective July 1, 2014

This Practice Direction applies to Divisional Court proceedings, effective July 1, 2014. It supersedes all Practice Directions for Divisional Court proceedings issued prior to July 1, 2014, which are hereby revoked.

Counsel and parties are advised to refer to the relevant parts of the separate Consolidated Provincial Practice Direction and region-specific Practice Directions which may affect Divisional Court proceedings. All Superior Court of Justice Practice Directions are available on the Court’s website at: www.ontariocourts.ca/scj.

Part I: Proceedings to be heard by a Single Judge

A. Application

1. This part applies only to motions, applications, and appeals before a single judge. It does not apply to matters to be heard by a Divisional Court panel.

2. The following proceedings in Divisional Court are directed for a hearing before one judge of the Divisional Court sitting in the Superior Court of Justice location where the hearing or other process that led to the decision appealed from took place:

1. appeals of final orders of an associate judge under s. 19(1)(c) of the Courts of Justice Act ;
2. appeals of Small Claims Court final orders under s. 31 of the  Courts of Justice Act 
3. motions for leave to appeal from certain tribunals, as required by statute (e.g. Assessment Act, Local Planning Appeal Tribunal Act), but not motions for leave to appeal under Rule 62.02 which are heard by a Divisional Court panel in the Regional Centre (see Part VII below);
4. urgent applications for judicial review, with leave, under section 6 (2) of the Judicial Review Procedure Act; and
5. motions for interim relief.

3. Paragraphs 4-11 of this Practice Direction apply only to the Toronto Region.

B. Proceedings in the Toronto Region

4. In the Toronto Region only, applications for judicial review under s. 6(2) of the Judicial Review Procedure Act, are directed to be brought in Divisional Court for a hearing before a single judge of that court sitting as a judge of the Superior Court of Justice.

The notice of application under s. 6(2), together with all other material, will be filed with the Divisional Court at Osgoode Hall.

Confirmation of Hearing

5. In the case of appeals to a single judge and other motions incidental to appeals or applications, counsel should contact the Divisional Court office by telephone, (416) 327-6202, to arrange a hearing date. In all three-judge proceedings, a hearing date must be obtained from the Registrar by telephone, (416) 326-5400.

6. Notwithstanding that a matter is set down for a hearing, and unless otherwise ordered by a judge, the papers will not be forwarded to the presiding judge and, unless otherwise ordered, the matter will not be heard on the date scheduled unless counsel for the moving party or applicant, by 2:00 p.m. three days prior to the scheduled hearing date, files all necessary material and confirms that the motion or application is to proceed as scheduled as required under the Rules of Civil Procedure (see rules 37.10.1 and 38.09.1).

Counsel for the moving party or applicant may confirm the hearing date by delivering the Confirmation Forms (Form 37B or Form 38B) to the Divisional Court office at Osgoode Hall or by fax transmission to (416) 327-5549. Motions under rule 62.02 for leave to appeal the interlocutory order of a Superior Court of Justice judge are exempt from this requirement, as these motions for leave are now heard by a panel in writing only (see Part II).

7. It is expected that a factum will be filed by each party on any matter.  The presiding judge may decline to hear a matter if a factum has not been filed.

8. It is the responsibility of counsel to see that the material is filed as directed.

Time Estimates on Argument

9. When an application under s. 6(2) of the Judicial Review Procedure Actor an appeal under s. 19(1)(c) and 21(2) of the Courts of Justice Act will require more than one hour for hearing, counsel should advise the Registrar of their best estimate when the appointment is given.:

Part II: Motions for leave to appeal to the Divisional Court

10.Rule 62.02 requires that motions for leave to appeal to the Divisional Court regarding an appeal of:

• an interlocutory order of a judge under clause 19 (1) (b) of the Courts of Justice Act, and
• a final order of a judge pertaining to costs under clauses 19 (1) (a) and 133 (b) of the Courts of Justice Act,

must be obtained from a panel of that court, rather than by a single judge. These motions for leave to appeal are heard in writing and must be filed at the Divisional Court Office in Toronto at the following address in person or by mail/courier, together with payment of the filing fee:

Divisional Court Office
Osgoode Hall
130 Queen Street West
Toronto, ON  M5H 2N5

The motion for leave will be heard in writing by a panel of three Divisional Court judges. Three printed copies of the motion record, factum and transcripts, if any, must be filed.

11. Counsel are reminded that all motions for leave to appeal must include, in the motion record, a copy of the signed and entered order from which leave to appeal is sought. In the materials filed with the court, parties should refer to themselves as “the moving party” or the “responding party”. Both the moving party’s and responding party’s motion records must include costs submissions respecting the motion for leave to appeal, unless doing so would disclose an offer to settle. Costs submissions should include the proposed quantum of costs (win or lose) and a costs outline (Form 57B).

Part III: Factums in the Divisional Court

12. Counsel and parties should refer to rules 61.11, 61.12 and 68.04(3) and (6) of the Rules of Civil Procedure which deal with factums on appeals and applications for judicial review. These rules require a “concise summary” of fact and law and an estimate of the time required for oral argument. If in counsel’s opinion a factum of more than 30 pages is necessary, counsel should arrange an appointment with a judge of the Divisional Court through the Registrar of the Court, before filing.

Part IV: Books of Authority

13. It is of great assistance to the Divisional Court to have books of authority filed by counsel containing copies of the authorities to which they intend to refer on the hearing of the matter. Such books of authorities:

1. Should include only the cases to which counsel actually intend to refer in the oral argument. The particular passages in the cases to which counsel wish to refer should be clearly marked.
2. Should be prepared jointly in accordance with this direction. Where counsel are unable to agree, then such case books should indicate whether they are filed by the appellant or the respondent. There should be consultation between counsel to avoid any duplication of the authorities included in their respective case books.
3. Should have a tab for each case (either numerical or by letters), should include an index of the authorities and indicate the tab where the authority is reproduced. It is not necessary to number the pages in the case-book so long as the photocopies show the page numbers of each authority.
4. Should be filed, if possible, not later than the Monday of the week preceding the hearing of the matter as they are of great assistance to the judges in preparing for the hearing.

Part V: Filing Electronic Versions of Documents in Civil Appeals and Judicial Review Applications

A. Application

14. This part is intended to establish a uniform approach to filing electronic documents for appeals and judicial review applications to the Divisional Court.

15. This part applies to civil appeals, including appeals from administrative tribunals, motions for leave to appeal under rule 62.02 and judicial review applications in the Divisional Court.

16. This part does not apply to motions other than motions for leave to appeal under rule 62.02. It does not apply to family appeals to the Divisional Court.

17. Parties filing electronic versions of material for Divisional Court proceedings must still file typed or printed copies of such material in accordance with Rules 61 – 62 and 68 of the Rules of Civil Procedure.

B. Appeals

18. Parties are required to file electronic versions of their factums and transcripts in appeals to the Divisional Court, in accordance with Rule 61 of the Rules of Civil Procedure.

18.1 Parties are also encouraged to file electronic versions of all materials (e.g. appeal books and compendiums, case books, record of proceedings) in the appeal.

C. Judicial Review Applications

19. The Court encourages parties to file electronic versions of their factums and transcripts in judicial review applications to the Divisional Court.

19.1 Parties are also encouraged to file electronic versions of all materials (e.g. application records, compendiums, case books, records of proceedings) in the judicial review application.

C.1 Motions for Leave to Appeal

20. The Court encourages parties to file electronic versions of their factums, transcripts, motion records and books of authorities in motions for leave to appeal from an interlocutory order of a judge under rule 62.02 of the Rules of Civil Procedure.

D. Providing Materials to Other Parties

21. Parties are also encouraged to give the electronic versions of documents that are filed electronically with the Court to all other parties to the proceeding.

E. Method of Filing Electronic Documents

22. Parties may file electronic documents on CD, DVD or USB key.  Three copies of the CD, DVD or USB key should be filed with the Court where the matter is being heard by a panel of three judges.

23. The CD, DVD or USB key should be accompanied by a covering letter which identifies the materials contained on the CD, DVD or USB key.

USB Key:  The cover letter should include a list of the files contained on the USB key, along with the title of proceedings, Court File #, Counsel Name(s), where applicable, and Party Name.  If possible, the key should be labelled with the short style of cause and the Court File #.

CD or DVD:  The CD or DVD should be labelled with the title of proceedings, Court File #, Counsel Name(s), where applicable, and Party Name.  Include a list of the files contained on the CD or DVD in a cover letter.

24. The electronic documents should be filed together with the hard copy of the factum filed with the Court.

F. Format of Electronically Filed Documents

25. The electronic documents must be submitted in either Microsoft Word format (.doc or .docx) or text searchable PDF format.

26. The electronic version of factums or any other material filed in a Divisional Court appeal or judicial review application must be formatted and contained in one file and be virtually identical to the official printed version that is also filed with the Court. For example, a single file for a factum should contain the front and back pages, the index, the text and the schedules.  Do not submit separate electronic files for the different sections of a factum or other document. Parties should refer to the Guide Concerning e-Delivery of Documents in the Superior Court of Justice with respect to the preparation and formatting of electronic materials to be filed with the Court.

G. Naming of Electronically Filed Documents

27. The file names for electronic versions of factums, transcripts and other documents filed must start with the Divisional Court appeal or judicial review application file number, followed by one of the character codes set out below.  Any other parties not included in this list should include their full name together with the title of the document they are filing.

Appeals

FAP	Factum of Appellant
FRE	Factum of Respondent
FXA	Factum of Cross-appellant
FXR	Factum of Cross-respondent
FOI	Factum of Intervener
FOAC	Factum of Amicus Curiae
AFAP	Amended Factum of Appellant
AFRE	Amended Factum of Respondent
FSE	Further Submissions – Appellant
FSR	Further Submissions – Respondent
ABC	Appellant’s Appeal Book and Compendium
RBC	Respondent’s Compendium
EXB	Exhibit Book
BOA	Book of Authorities of Appellant
BOR	Book of Authorities of Respondent

Transcripts

TRN	Transcript

Judicial Review Applications

FAPL	Factum of Applicant
FRP	Factum of Respondent
FIN	Factum of Intervener
ROP	Record of Proceeding
APAR	Application Record of Applicant
APRR	Application Record of Respondent
APINR	Application Record of Intervener
BAAP	Book of Authorities of Applicant
BARP	Book of Authorities of Respondent

Motions for Leave to Appeal

MPF	Factum of Moving Party
RPF	Factum of Responding Party
MMP	Motion Record of Moving Party
MRP	Motion Record of Responding Party

H. Failure to Comply with this Practice Direction

28. Please note that the Divisional Court may reject any electronic version of a factum or transcript that does not conform to the procedures set out in paragraphs 14-27 of this Practice Direction.

Part VI: Judges’ Book of Authorities

29. A Judges’ Book of Authorities containing authorities frequently relied on is supplied to each judge who sits in Divisional Court. There will be additions to, and deletions from, the book from time to time. An up-to-date list of the authorities in the Judges’ Book will be available as of July 1, 2014, on the Court’s website.

30. In preparing books of authorities, counsel need no longer include authorities contained in the Judges’ Book. However, extracts from those authorities which counsel intend to refer to the court should be included in the factum or book of authorities.

Part VII: Regional Centres for Divisional Court Panel Hearings

31. The court locations listed below are the designated Divisional Court regional centres where panels of three Divisional Court judges hear appeals and applications for judicial review. Court documents relating to these hearings must be filed at the regional centre. (See Part I above regarding appeals heard by a single judge)

Region	Regional Centre
Central East Region	Durham Region Courthouse 150 Bond St. E. Oshawa, ON  L1G 0A2
Central South Region	Hamilton (John Sopinka) Courthouse 45 Main St. E. Hamilton, ON  L8N 2B7
Central West Region	Brampton (A. Grenville & William Davis) Courthouse 7755 Hurontario St. Brampton, ON  L6W 4T1
East Region	Ottawa Courthouse 161 Elgin St., 2nd Fl. Ottawa On K2P 2K1
Northeast Region	Sudbury Courthouse 155 Elm St. Sudbury, ON  P3C 1T9
Northwest Region	Thunder Bay Courthouse 125 Brodie St. N. Thunder Bay, ON  P7C 0A3
Southwest Region	London Courthouse 80 Dundas St. London, ON N6A 6A3
Toronto Region	Osgoode Hall 130 Queen St. W. Toronto, ON M5H 2N5

Dated: April 11, 2014
Amended:  May 17, 2019; December 7, 2018; July 1, 2017 (Part II); May 10, 2016 (Part VI); January 25, 2016 (Part IV)

Heather J. Smith
Chief Justice
Superior Court of Justice (Ontario)