Top 4 Mistakes by Respondents on Appeal

When served with a Notice of Appeal to the Ontario Court of Appeal or the Divisional Court, respondents may be tempted to take a cavalier approach.

After all, the respondent was already successful in the lower Court or tribunal proceeding. Much of the appeal will concern justifying the respondent’s victory. The respondent may hold a sincere conviction that all that is required for the appeal is to repeat and rely on the materials, evidence, and law from the underlying proceeding.

An appeal, however, is a very different creature from the underlying civil or tribunal adjudication.

Appeals typically engage questions of law of importance to Ontarians as a whole.

They require an entirely different skill set and methodology from what was advanced in the previous proceeding.

Below is a list of some of the more common mistakes made by respondents in civil appeals.

1. Failing to Emphasize the Standard of Review

The standard of review constitutes the lens through which the appellate Court will review the underlying decision.

In the civil context, questions of law attract little deference, while Courts will almost always defer to findings of fact or mixed fact and law, unless the Court engages an extricable question of law.^[1] The same may be true of appeals from tribunal decisions.^[2]

Where a respondent has already been successful, the failure to emphasize deference as the standard of review may prove fatal.

Unless there is a pure question of law engaged, respondents will want to underscore the importance of the deferential posture that the appellate Court should assume.

Glossing over the standard of review, or neglecting to give it prominence, invites intervention by the appellate Court.

2.       Taking an Unreasonable Position on the Stay Pending Appeal

Depending on the circumstances and the governing legislation, a stay of the underlying order pending the outcome of the appeal may not be automatic.^[3]

If not, the appellant may be required to bring a motion for a stay, assuming the parties cannot agree to stay the order until the Court decides the appeal.

The test for a stay usually involves a consideration of:

• the merits of the appeal, i.e., whether there is a serious issue to be tried;
• whether the appellants will suffer irreparable harm if the stay is not granted; and
• whether the balance of convenience favours granting a stay.^[4]

The overarching consideration is whether “the interests of justice call for a stay”.^[5]

Stay motions can be costly and usually proceed on a parallel track with the appeal. 

As such, if there is good reason to believe that the appellant will suffer irreparable harm if a stay pending appeal is not granted, the respondent should consider whether to simply agree to a stay until the appeal runs its course.

3.       Failing to Emphasize the Reasons for the Underlying Decision

Absent a pure question of law, where an appeal engages questions of mixed fact and law, the Courts will likely apply the “palpable and overriding error” standard of review. 

This standard applies to factual findings based on credibility assessments, the weighing of competing evidence, expert evidence, the interpretation of documents, or the drawing of inferences from primary facts.^[6]

A “palpable” error is “one that is obvious, plain to see or clear”. An error is “overriding” where it “discredits the result”.^[7]

Because the standard to prove a palpable and overriding error is so high, the respondent must draw the reasoning of the underlying decision to the appellate Court’s attention. 

This means quoting from the decision, showing how the decision-maker applied the law to the facts, and demonstrating that the underlying decision was based on the evidence and the underlying record. 

Respondents who fail to highlight for the appellate Court the well-reasoned nature of the underlying decision risk having the appellate Court scrutinize the record itself and substitute its own findings for those of the underlying adjudicator.

4.       Failing to Resist the Admission of Fresh Evidence

An appellant who seeks to introduce fresh evidence on an appeal faces an uphill battle. 

They must show that:

• the evidence could not have been adduced at trial;
• the evidence is relevant in that it “bears on a decisive or potentially decisive issue”;
• the evidence is reasonably capable of belief; and
• the evidence, if believed, could reasonably be expected to have affected the underlying result.^[8]

Absent these circumstances, the appellate Court should not consider the fresh evidence and remains bound by the underlying record before the original adjudicator.

Respondents must adopt a critical eye when facing a proposal by the appellant to adduce fresh evidence. 

If necessary, the respondent should require the appellant to bring a motion for the admission of such evidence, either before the appellate panel or before a single judge.

Respondents Need Not Rest on their Laurels

An appeal does not constitute a hearing de novo.

This has serious implications for the respondent. 

Where pure legal questions are engaged, the respondent’s role is to advance the case that the underlying adjudicator was correct in their assessment and application of the relevant legal principles. This is a very different analysis from that required in the underlying proceeding, i.e., showing why the law supports the respondent’s position on the facts.

Where questions of mixed fact and law are implicated, the respondent assumes a defensive role and has the burden of explicating the record and the application of legal principles by the adjudicator to the facts. Again, this engages a very different skill set than simply “proving your case” in the underlying proceeding.

Respondents unversed in appeals therefore need to tread carefully – basic mistakes in the approach to an appeal could result in the decision being revisited and ultimately overturned by the appellate Court.

Marco P. Falco is a Partner in the Litigation Department at Torkin Manes LLP who focuses on civil appeals and applications for judicial review.  You may contact Marco about your matter at mfalco@torkin.com.  A conflict search will need to be conducted before we can discuss your concerns.

[1] One York Street Inc. v. 2360083 Ontario Ltd., 2026 ONCA 176 at paras. 65-66, citing Housen v. Nikolaisen, 2002 SCC 33, at paras. 33 & 36.

[2] See, for example, Rogerson v. Law Society of Ontario, 2025 ONSC 4106 (Div. Ct.) at para. 25.

[3] See, for example, Rules of Civil Procedure, R.R.O. 1990, Reg. 194 at Rule 63.

[4] Vault Capital Inc. v. Dacosta, 2026 ONCA 90, at para. 6, citing Ducharme v. Hudson, 2021 ONCA 151, at paras. 10-12.

[5] Vault Capital v. Dacosta, supra at para. 6, citing Re Essar Steel Algoma, 2016 ONCA 274 at paras. 27-28.

[6] 3Com Corp. v. Zorin International Corp., 2006 CanLII 18351 (C.A.) at para. 13, citing Housen v. Nikolaisen, supra at para. 5.

[7] 3Comp Corp. v. Zorin International Corp., supra at para. 13.

[8] A.A. v. Z.S.M., 2025 ONCA 283, at para. 17, citing R. v. Palmer, [1980] 1 S.C.R. 759.