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  • Charles Baker

How Difficult is it to Appeal a Judge?

In many cases one must first obtain permission (or leave) from the court to appeal. In other words, an appeal is not as of right. For example, you need leave before you can appeal an interlocutory order of a Judge of the Superior Court of Justice that does not finally dispose of the proceeding. One must confirm whether he or she needs leave and the time in which notice must be given and filed by consulting either the Courts of Justice Act or the legislation that applies to the appeal. The time limits for obtaining leave are short and strict. This article deals with those appeals where one needs leave.

Rule 62.02(4) of the Rules of Civil Procedure sets out the test to be used in determining whether to grant leave to appeal an interlocutory motion decision. It states as follows:

“62.02(4) Leave to appeal shall not be granted unless,

There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

The test for granting leave to appeal under rule 62.02(4) is well settled. It is recognized that leave should not easily be granted and that the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and in each case both aspects of the two-part test must be met before leave may be granted.”

An exercise of discretion that has led to a different result because of different circumstances does not meet the requirement for a conflicting decision within the meaning of rule 62.02(4)(a). Rather, it is necessary to demonstrate a difference in the principles chosen as a guide to the exercise of such discretion. If there is no difference in the principles applied in the exercise of discretion then there is no conflicting decision.

It is a fundamental principle respecting the exercise of judicial discretion that different judges in different circumstances can arrive at different results in the exercise of their discretions. Unless an error can be demonstrated in the application of the governing principles in the exercise of discretion, the result of exercising that discretion cannot be interfered with.

The law is also clear with respect to the proper interpretation of rule 62.02(4)(b). The conditions for granting leave to appeal are conjunctive. A Judge hearing such a motion must have both a good reason to doubt the correctness of the decision and must also be satisfied that the matters involved are of such importance that, in his or her opinion, leave should be granted. Importance only to the litigants is insufficient. Instead, the matters must be of public importance and relevance to the development of the law and the administration of justice in general.

The requirement that there be good reason to doubt the correctness of the decision has been held to refer to the correctness of the result rather than the path taken to get to the result. Therefore, the subject of the leave motion is the correctness of the result of the decision, not necessarily the underlying reasons for the result. Even if a court is satisfied as to the first branch of the test (good reason to doubt the correctness of the decision), the court must still satisfy itself as to the second branch of the test.

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