Top Five Mistakes When Seeking Leave to Appeal

In Ontario, appellants do not have an inherent or common law right to appeal an underlying order.  Appeal rights are “wholly a matter of statute”. 

Therefore, to determine whether and how to appeal an order, appellants must consult the governing legislation first.

That said, not all appeals are created equal. 

The Legislature may have good policy reasons for insisting that an appellate Court initially scrutinize whether to allow an appeal to proceed. This is known as the “leave” requirement.

Reasons for requiring leave to appeal may include:

• the fact that the appellant has already been afforded a right of appeal; 
• the appellant has chosen a form of alternative dispute resolution (such as arbitration); or

• the nature of the underlying order is interlocutory, such that the Courts should not be overwhelmed by appeals of orders that do not determine the final merits of a case.

Where the legislation requires leave, the potential appellant must bring a motion for leave to appeal. The Court then determines whether to grant leave, usually without providing reasons for decision.

The process is therefore somewhat opaque, making it dangerous for the unversed to bring or respond to a motion for leave without prior experience.

Below is a list of the most common mistakes made by moving and responding parties when addressing a leave to appeal motion.

1. Failing to Determine if Leave to Appeal is Required

As noted above, an appellant does not have an inherent right to appeal an underlying order or decision of a court or tribunal.

For most interlocutory orders made by Ontario Courts, the Rules of Civil Procedure require that the party seeking to appeal obtain leave to appeal first.  Whether a decision amounts to a “final” or “interlocutory” order has consumed much judicial ink.  

An order that does not determine the “real matter in dispute between the parties”, but only some collateral matter, is interlocutory. Even if that order is “final in the sense that it determines the very question raised … it is interlocutory if the merits of the case remain to be determined”. 

In determining whether an order is final or interlocutory, the Court looks at the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order. 

Outside the context of the civil litigation, a governing statute may require the potential appellant to seek leave to appeal.  

For example, under Ontario’s Arbitration Act, if the arbitration agreement between the parties does not deal with appeals on questions of law, a party can only appeal the underlying arbitral award to the Court, with leave, on a question of law.  The “leave” requirement in this case protects the finality of the arbitrator’s decision and the parties’ choice to resolve the dispute outside the Court system. 

Accordingly, before starting an appeal, parties must ensure that leave to appeal is not required first.  

2. Failing to Address the Legal Test for Leave

Many lawyers and their parties think that a motion for leave to appeal represents a chance to revisit the errors in the decision below.

However, tests for leave to appeal are usually complex.

A motion for leave to appeal from the Divisional Court to the Ontario Court of Appeal, under Rule 61.03.1 of the Rules of Civil Procedure,  for example, requires the Court to consider a number of factors, including whether the proposed appeal raises an arguable question of law or mixed, and law involving:

• The interpretation of a statute or regulation, including its constitutionality;
• The interpretation, clarification or propounding of some general rule or legal principle;
• The interpretation of a municipal by-law where the point in issue is a question of public importance;
• The interpretation of an agreement where the point in issue involves a question of public importance; or

• “Special circumstances” that would make the proposed appeal one of public importance or would appear to require that it is in the interests of justice that leave should be granted. Such circumstances may include the introduction of new evidence, an obvious misapprehension of the facts, or a clear departure from established principles of law. 

Accordingly, a leave application may very well involve considerations well beyond whether the lower Court or tribunal fell into error.  

Understanding the test for leave is critical: it requires the moving party to structure their motion according to the dictates of the test, rather than simply re-arguing the merits.

3. Neglecting to Obtain a Stay of the Underlying Order

If an appeal requires leave, typically the underlying Order is not stayed pending the motion for leave.

The very purpose of requiring a party to meet the stringent tests for leave to appeal is to discourage frivolous appeals that simply prolong proceedings and lead to delay. 

Accordingly, the governing legislation may not automatically stay the underlying order pending a leave motion. In this scenario, the moving party may have to bring an additional, separate motion to stay the underlying order pending the motion for leave.

The test for a stay can be stringent, and usually requires the judge hearing the motion to consider:

• Whether there are serious issues to be adjudicated in the proposed appeal;
• Whether the moving party will suffer “irreparable harm” if a stay is not granted; and

• Whether the balance of convenience favours granting a stay. 

4. Failing to Seek Costs

Many motions for leave to appeal are heard by the Court “in writing”. This means that lawyers cannot make oral submissions and do not appear before the panel hearing the motion itself.

Accordingly, certain Courts, like the Divisional Court in Ontario, require the parties to make costs submissions in writing on the motion for leave to appeal.  This includes the preparation of a costs outline.  

The failure to do so could result in a successful moving party not recouping their costs after obtaining leave to appeal.

5. Failure to Adhere to the Grounds of Appeal, should Leave be Granted

If a party is successful in obtaining leave to appeal, they should not look to expand the scope of the grounds of appeal beyond those articulated in the motion for leave.

Extrapolating an appeal beyond its proposed conceptual boundaries is improper.

If the Court granted leave on the basis of the parties’ positions taken on the motion for leave, the appeal is confined to those grounds advanced by the moving party, now appellant, on the motion.

Conclusion

Motions for leave to appeal are unique procedures requiring specialized expertise.

Practitioners unfamiliar with appellate litigation should tread carefully.

Ignoring the common errors above could make the difference between success or failure and determine whether your client will have the opportunity to appeal.

Marco P. Falco is an award-winning Partner in our Litigation & Dispute Resolution Group who practises appellate litigation and judicial review. You may contact Marco about your matter at mfalco@torkin.com. Note that a conflict search will need to be conducted before your matter may be discussed.

[1] Sutcliffe v. Ontario (Minister of Environment) (2004), 69 O.R. (3d) 257 at para. 23.

[2] Sutcliffe, supra at para. 23.

[3] Rules of Civil Procedure, R.R.O. 1990, Reg. 194 at Rule 62.02.

[4] Henrickson v. Kallio, [1932] O.R. 675 (C.A.), as cited in Libfield v. Libfield, 2026 ONCA 343.

[5] Libfield, supra at para. 36.

[6] Arbitration Act, 1991, S.O. 1991, c.17 at s.45(1).

[7] Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, at para. 1.

[8] Rules, supra at Rule 61.03.1.

[9] Davis v. Aviva General Insurance Company, 2024 ONCA 944 at para. 3.

[10] BTR Global Opportunity v. RBC Dexia Investor, 2011 ONCA 620 at para. 16.

[11] Consolidated Practice Direction for Divisional Court Proceedings, June 8, 2026 at para. 70(c).