Practice Direction Concerning Civil Appeals in the Court of Appeal

[Indexed as: Practice Direction -- Civil Appeals -- 2004]

65 O.R. (3d) 641

Ontario Court of Appeal

October 7, 2003

Court of appeal -- Application -- Application of Rules of Civil procedure -- Addressing court -- Notice of appeal -- Motions -- Appeal management -- Early resolution of appeals -- Pre-hearing Conferences in Family Law appeals -- Pre-hearing Conference in other appeals -- Perfecting appeal -- Scheduling procedures -- Costs -- Post-hearing submissions.

PRACTICE DIRECTION

1. APPLICATION

The following practice direction was filed with the Secretary of the Civil Rules Committee on October 7, 2003 and is published herein pursuant to rule 1.07 of the Rules of Civil Procedure. It will become effective on January 1, 2004.

This practice direction revokes and replaces practice directions dated:

1. May 1, 1993 (practice direction concerning civil matters in the Court of Appeal for Ontario-- motions to the Court of Appeal in civil matters, title of proceeding in civil appeals in the Court of Appeal, unnecessary evidence in civil appeals in the Court of Appeal, factums in civil appeals in the Court of Appeal, books of authorities and filing motion material in the Court of Appeal),

2. December 18, 1995 (practice direction concerning new scheduling procedures for civil appeals),

3. April 12, 1996 (practice direction concerning New Procedure Respecting Motions in Writing for Leave to Appeal to the Court of Appeal) and

4. July 27, 2000 (practice direction concerning Pre-hearing Settlement Conferences in Family Law Appeals). [page642]

It also replaces:

1. a notice to the profession regarding "Appeals and Motions by Video-conference" and

2. notices to the profession dated:

a) March 22, 2000 (Filing of Compendium),

b) February 15, 2001 (Addressing Members of the Court of Appeal), and

c) January 1, 2002 (Costs in the Court of Appeal).

It also incorporates several new or previously unpublished procedural practices in the Court of Appeal.

2. APPLICATION OF RULES OF CIVIL PROCEDURE

Practice directions supplement the Rules of Civil Procedure and provide guidance and direction to counsel or litigants as to matters not touched on by the rules. Where there is a conflict between Rules of Civil Procedure and a practice direction, the Rules of Civil Procedure take precedence.

3. ADDRESSING THE COURT

Members of the Court of Appeal should be addressed and referred to in gender-neutral terms, such as "Justice" or "Justice (Surname)", and not as My Lady, My Lord, Your Ladyship, Your Lordship or Your Honour.

4. NOTICE OF APPEAL IN CIVIL APPEALS

4.1. Title of Proceeding

1. The title of a proceeding in the Court of Appeal shall be in accordance with rule 61.04(2) and Form 61(B). Accordingly the title of proceedings should set out the parties in the same order that they appeared in the title of proceedings in the court appealed from. The appellant and respondent should be clearly identified as set out in Form 61(B).

4.2 Jurisdictional Statement

1. From time to time appeals are filed in the wrong court. Effective July 1, 2003, the Rules of Civil Procedure require that the notice of [page643] appeal must include a jurisdictional statement outlining the statutory or other basis for filing an appeal in a particular appellate court;

2. The Courts of Justice Act provides for the appellate jurisdiction of the Court of Appeal and Divisional Court. However, provisions of other statutes governing particular litigation may modify these general provisions of the Courts of Justice Act. The jurisdictional statement should include a reference to the provisions of any relevant statute or rule that provides for an appeal to the Court of Appeal. The jurisdictional statement should set out the basis upon which the appellant asserts that the Court of Appeal has jurisdiction to entertain the subject appeal.

4.3 Additional Information

1. The Court requests that parties include their telephone number, fax number, e-mail address and in the case of counsel, Law Society number on all documents filed with the Court.

5. MOTIONS TO THE COURT OF APPEAL IN CIVIL MATTERS

5.1. Motions to a Single Judge

5.1.1. General

1. A judge in Chambers hears motions daily at 10 o'clock in the morning. Counsel may select the date for the hearing of a motion provided that time limits set out in the Rules of Civil Procedure regarding service and filing are complied with.

2. In urgent situations where such time limits cannot be complied with, leave to file material may be obtained from the Registrar or a judge.

3. The notice of motion shall contain a statement outlining the jurisdiction of a single judge to hear the motion and grant the relief requested.

4. The notice of motion shall contain an estimated length of time for the oral argument of the motion. [page644]

5. In order to ensure the efficient use of Court resources, the Registrar may direct that a motion scheduled for hearing be removed from the list and rescheduled to a different date. Counsel or the parties will be consulted before the motion is removed from the list and the hearing rescheduled.

6. Motions to expedite the production of transcripts must be served on the opposing party and the court reporter or the local Manager/Coordinator of Court Reporters.

7. Motions to expedite appeals may be brought to a judge in Chambers.

5.1.2 Motions on Consent

1. Where all parties consent to an order, counsel may file a notice of motion, two copies of the draft order, the consent of the parties and an affidavit or covering letter setting out why the consent order is appropriate.

2. If a judge considering the proposed consent order is satisfied that it should issue, the order will be issued, usually within 24 hours.

3. If a judge considering the proposed order is not satisfied that it should issue, the parties will be advised and will be given an opportunity to make further oral or written argument.

5.1.3 Intervention

1. Motions to intervene in an appeal in the Court of Appeal are heard by the Chief Justice or Associate Chief Justice of the Court.

2. To obtain a hearing date for such a motion, the parties should consult with each other in order to obtain mutually agreeable dates for hearing the motion and present these dates to the court through the office of the Senior Legal Officer. If the parties cannot agree on suitable dates, the court will fix the date of the hearing. [page645]

3. Counsel for the moving party will be advised of the selected hearing date and will be responsible for notifying the other parties.

4. After the date for the hearing of the motion to intervene has been fixed, the moving party must file a notice of motion and other material for use by the court in accordance with the Rules of Civil Procedure and this practice direction.

5. Where appropriate, motions to intervene may be argued by telephone conference call.

5.1.4 Factums for Use on Motions

1. It is of great assistance to the Court of Appeal to have factums filed for use on motions. At the same time it is understood that the filing of factums in some relatively simple motions may cause undue delay and expense to the litigants.

2. As a result, a factum must be served and filed in motions for which the time of argument of the moving party is estimated to require 15 minutes or more.

3. Notwithstanding any time estimate to the contrary contained in the notice of motion, if a factum has not been filed, the oral argument of the moving party shall be limited to 15 minutes.

4. In the majority of motions, the length of the factums should be 10 pages or less and except with leave may not exceed 30 pages. If counsel is of the opinion that a factum of more than 30 pages is needed in any particular case, counsel should obtain leave from the Registrar or a judge for the filing of such factum.

5.1.5 Filing Material for Use on a Motion Before a Judge

1. Unless the Rules of Civil Procedure provide otherwise, all of the material for motions before a judge in chambers in the Court of Appeal must be filed at least two days prior to the hearing. In urgent situations where this time limit cannot be complied with, leave to file [page646] material may be obtained from the Registrar or a judge.

2. If a factum is filed, an electronic copy of the factum should also be filed with the court.

5.2 Motions Before a Panel

5.2.1 General

1. Except in cases of urgency, motions before a panel will not be scheduled for hearing until the moving party has filed the motion record, factum and transcript, if any.

2. In motions before a panel, the oral argument shall be limited to 15 minutes for the moving party, 10 minutes for the responding party, and 5 minutes for reply.

3. Counsel who seek more time for oral argument must make a request to the List Judge arranged through the Appeals Scheduling Unit by fax (416-327-6256).

5.2.2 Motions to Quash an Appeal

1. Motions to quash appeals are heard by a panel of the court. Where the basis for the motion to quash is that the court lacks jurisdiction to hear the appeal, the motion will be scheduled at an early date.

2. Motions to quash an appeal based on an argument that the appeal is devoid of merit will be heard together with the appeal, since the court will be obliged to consider the merits of the appeal, in any event, in determining the motion.

5.2.3 Filing Material for Use on a Motion before a Panel

1. The court requests that counsel file an electronic copy of any factum or transcript filed on a motion before a panel including a motion in writing for leave to appeal brought under Rule 61.03.1. [page647]

5.3 Confirmation of Motion

1. A party who makes a motion on notice to another party shall :

(a) confer or attempt to confer with the other party;

(b) not later than 2 p.m. two days before the hearing date, give the Registrar a confirmation of motion (Form 37B, below, or as set out in the Rules of Civil Procedure) by sending it by fax (416-327-5032), by e-mail (coa.e-file@jus.gov.on.ca), or by leaving it at the court office; and

(c) send a copy of the confirmation of motion to the other party by fax or e-mail.

2. If no confirmation is given, the motion shall not be heard, except by order of the court.

3. A party who has given a confirmation of motion and later determines that the confirmation is no longer correct shall immediately give the Registrar a corrected confirmation of motion (Form 37B) and send a copy of the corrected confirmation of motion to the other party.

Form 37B Courts of Justice Act CONFIRMATION OF MOTION (General heading) CONFIRMATION OF MOTION

I, .............. (name), counsel for the moving party, confirm that the motion to be heard on ............. (date) will proceed on the following basis:

[ ] for an adjournment on consent to .............. (date)

[ ] for a contested adjournment to .............. (date), for the following reason: (specify who is requesting the adjournment and why, and who is opposing it and why) [page648]

[ ] for a consent order

[ ] for hearing of all the issues

[ ] for hearing of the following issues only (specify)

I estimate that the time required for the motion will be: ............. minutes for the moving party (ies) and .......................minutes for the responding party (ies) for a total of ................... minutes.

(Date)

TO (Name and address of responding party's lawyer or responding party)

6. APPEAL MANAGEMENT

1. In exceptional cases it is appropriate that a judge be assigned to manage the conduct of an appeal. The request for the assignment of such an appeal management judge is to be made to the court through the office of the Senior Legal Officer. The request should contain enough information to satisfy the court that such an appointment is appropriate. The decision to appoint an Appeal Management Judge will be made by the Chief Justice or Associate Chief Justice of the Court. Counsel will be advised of the outcome of the decision.

2. The Appeal Management Judge shall conduct such appeal management conferences as are appropriate and hear all motions (within the jurisdiction of a single judge) brought by any party to the appeal. Dates for conferences or motions will be arranged through the Appeals Scheduling Unit by fax (416-327-6256) in consultation with counsel and the Appeal Management Judge.

3. Appeal management conferences will be held to deal with matters not otherwise governed by the Rules of Civil Procedure, including consideration of the order of argument; time allocated for the argument of each party; the date and length of the hearing of the appeal; the issues to be argued; whether settlement of the appeal or issues under appeal is possible; [page649] coordination, if necessary, of the scheduling of prehearing motions and similar matters. Such conferences will be conducted in person or by teleconference. In order to ensure efficient administration of the appeal, the results of any decisions made by the Appeal Management Judge on such conference will be communicated as necessary to the panel hearing the appeal, all parties and the court's staff.

4. However, where the parties seek relief from compliance with requirements of the Rules of Civil Procedure or of this practice direction, which would otherwise be enforced by court staff or the panel hearing the appeal, an order will be required.

5. Where all parties consent to an order, it may be obtained by filing a notice of motion, two copies of the draft order, the consent of the parties, and an affidavit or covering letter containing sufficient information to satisfy the judge that the order is appropriate.

6. If the order is not on consent, a motion is appropriate. Because the motion will be heard by the Appeal Management Judge, counsel are first required to obtain a hearing date from the court by contacting the court's Appeals Scheduling Unit. After obtaining a date for such a motion, the moving party must file a notice of motion and other material in accordance with the Rules of Civil Procedure and this practice direction.

7. Such a motion may be heard in writing, in person or by videoconference or teleconference as appropriate.

8. The result of any such motion will be endorsed on the motion record. The moving party will draft an order for use by the parties and the court.

7. EARLY RESOLUTION OF APPEALS

1. Where an appeal has been settled or abandoned, counsel or the parties are expected to advise the court as soon as possible in order to ensure efficient use of courtrooms and court resources.

2. Where an appeal has been settled, and the parties require an order of the court that does other than [page650] merely dismiss the appeal with or without costs, it will be necessary for at least one of the parties to appear before the court in order to satisfy the court that the order requested is not inappropriate.

8. PRE-HEARING CONFERENCES IN FAMILY LAW APPEALS

8.1 General

The Court of Appeal for Ontario is pleased to introduce a program offering a voluntary pre-hearing conference. Its purpose is to attempt to resolve family law appeals at an earlier stage in order to reduce costs for litigants. The court is making available a roster of appellate judges who have particular interest in family law matters. The pre-hearing conference is for those parties who would like to explore a final resolution of their legal differences before a full hearing or a narrowing of the issues requiring resolution. The court will hold a pre-hearing conference only if all parties believe that a judge's assistance may assist them in resolving or narrowing the issues on appeal.

8.2 Two-Stage Process

Pre-hearing conferences will be offered at two stages, as the parties require. A Stage 1 conference will take place as soon as possible after the Notice of Appeal has been filed but before the transcript has been prepared. The purpose of the conference at this stage of the proceedings is to minimize cost if at all possible, especially the cost of the production of the transcripts. However, the parties must comply with Rule 61.05(5).

A Stage 2 conference will take place after perfection of the appeal. It is designed to attempt a global resolution of the issues under appeal but, if unsuccessful, at least to offer a "good, hard look" at the issues and explore alternatives to see if the appeal, or at least some issues, can be resolved.

8.3 Application for a Pre-hearing Conference

The parties must submit a "Joint Request for Pre-hearing Conference" in order to apply for a conference. [page651] They are to specify whether they are seeking a Stage 1 or Stage 2 conference although, in most cases, the timing of the application will be sufficient to advise the court. The request must be made in writing and can be delivered or mailed to the court or sent by facsimile (416-327-5032). The parties should propose a range of dates and times for the conference that are suitable to all participants. The request should also contain a reasonable estimate for the length of the conference, although the court will be as flexible as required by the circumstances.

Once the "Joint Request" is received by the court, the Registrar will schedule a conference, usually within 7 to 30 days. The court will make every effort, especially in respect of Stage 1 conferences, to convene counsel and the parties as quickly as possible. Because the pre-hearing conference is not intended to delay the normal progress of the appeal, a request for such a conference does not operate to suspend the obligation of the parties to comply with the requirements of Rule 61.

8.4 Memoranda

If the parties request a Stage 1 conference, they will be required to file a copy of the Reasons for Judgment and a memorandum outlining the issues. It is the appellant's responsibility to deliver the Reasons for Judgment to the court for use at the conference. The memorandum of each party shall be no longer than 6 pages. If either party requires an exhibit from trial, it may be attached. The court expects that counsel will attempt to isolate the real points in issue and consider ways in which they may be resolved. As the court file will be available, the parties need not include material in the memoranda that is apparent from the notice of appeal. The memoranda should be served on the other parties.

The Judgment and memoranda should be filed with the court at least 2 days before the conference.

If the parties wish a Stage 2 conference, they must file memoranda as in Stage 1. The court will also rely on the appeal book and the factums filed in preparing for the conference. [page652]

8.5 The Conference

A Court of Appeal judge will preside over the conference. The parties and those who may have a significant influence on the outcome of the conference must be present, as they are the ultimate decision-makers. The parties are free to ask the court for whatever arrangement counsel believes to be appropriate and necessary. The process is meant to be as flexible as the parties wish.

The pre-hearing conference will not result in an adjournment of the appeal. The judge conducting the pre-hearing conference will not be assigned to the panel ultimately hearing the appeal and will not discuss any aspect of the pre-hearing conference with the panel.

8.6 The Results

If the pre-hearing conference results in a successful resolution of some or all of the issues, the court will expect an agreement to be drafted and signed by the parties. Counsel may also be required to provide a draft order and to speak to the settlement in court. This will depend on the circumstances of the settlement.

Except for such an agreement and draft order, the fact of the pre-hearing conference, the memoranda filed and all deliberations in the process, will remain strictly confidential and without prejudice to the parties' legal positions. If the pre-hearing conference is unsuccessful, the appeal will proceed as scheduled.

8.7 Notice to Parties

To encourage parties to use the pre-hearing conference facility, counsel filing or responding to an appeal will be required to advise their client of the availability of this service.

8.8 Inquiries

Further information, if required, may be obtained from the Court's Senior Legal Officer, Mr. J. H. Kromkamp by telephone (416-327-5276) or fax (416-327-6256). [page653] A pre- hearing conference may be arranged by contacting the court's Appeals Scheduling Unit by telephone (416-327-5028/5035 or fax (416-327-6256 ). Counsel must consult with each other and submit mutually agreeable dates for the conference for consideration by the court. Once a conference date is selected, counsel will be advised accordingly.

9. PRE-HEARING CONFERENCE IN OTHER APPEALS

A judge of the court may conduct a pre-hearing conference in any appeal in which all counsel request such a conference. Arrangements for a pre-hearing conference shall be made through the court's Appeals Scheduling Unit by telephone (416-327-5028/ 5035) or by fax (416-327-6256). The parties should proceed by way of analogy to the procedures set out in the program for pre-hearing conferences in family law appeals.

10. PERFECTING THE APPEAL

10.1 Unnecessary Evidence and Exhibits

1. The transcription of unnecessary evidence and the reproduction of unnecessary exhibits only result in delays in the hearing of appeals and substantially increase the cost of litigation.

2. In order to eliminate the transcription of evidence and the reproduction of exhibits which are not required for the disposition of an appeal by the Court of Appeal, the attention of the profession is directed to rule 61.05 respecting the service of certificates (Form 61C and Form 61D) or an agreement respecting evidence. It is appreciated that where the counsel who acted at trial is not taking the appeal, the assistance of the counsel who took the trial may be required in completing the certificates or making the agreement.

3. In appeals where the facts are not in dispute, an agreed statement of facts should take the place of a transcript. The directions of a judge of the Court of Appeal in Chambers should be obtained where required under rule 61.09(4). [page654]

4. Unless otherwise ordered by a judge of the Court of Appeal, there shall be omitted from all transcripts of evidence for civil appeals:

(a) all proceedings on the challenge of the array or of jurors for cause;

(b) any opening address of the trial judge;

(c) the opening and closing addresses of counsel;

(d) all proceedings in the absence of the jury and all argument in the absence of the jury (excepting objections to a charge and the trial judge's ruling thereon together with any reasons for his ruling), and all argument where there is no jury;

(e) all objections to the admissibility of evidence excepting only a notation that an objection was made. (The ruling of the trial judge including any reasons for the ruling will be transcribed.)

5. Where any of the matters mentioned in paragraph 4 above, is the subject of a ground of appeal, an order of a judge may be obtained for the transcription of the relevant material.

10.2 Timely Preparation of Transcripts

1. The court reporters have been instructed that after a transcript has been ordered for a civil appeal, the completion of the transcript is not to be suspended without an order of a judge of the Court of Appeal or the receipt of a notice of abandonment of the appeal.

2. This does not apply to appeals where a provisional Legal Aid certificate has been issued and the Area Committee has not yet made a decision as to granting of Legal Aid. In order to ensure timely determination of Legal Aid applications, trial counsel are reminded of their primary responsibility to prepare an opinion letter for use on the application for Legal Aid. Every effort should be made to prepare and submit this [page655] opinion letter to Legal Aid within 30 days of the filing of the notice of appeal by the appellant.

3. The court reporter or a coordinator for reporters (if more than one reporter recorded the proceedings) is requested to file with the Court of Appeal a Court Reporter's Certificate when the transcript has been ordered and a Court Reporter's Certificate of Completion when the transcript has been completed. This request is in addition to any obligation imposed on the parties by the Rules of Civil Procedure.

4. Commencing on January 1, 2004, it is anticipated transcripts will be completed within 90 days of the date of being ordered, subject to extensions for exceptional circumstances. A list of coordinators for court reporters in each region will be made available by the Court Services Division of the Ministry of the Attorney General and kept current so as to permit monitoring of the progress of any transcripts ordered.

5. Counsel are reminded that interim payments for transcripts may be obtained from Legal Aid Ontario.

6. If a Court Reporter's Certificate of Completion has not been filed by the expected completion date of the transcript, the court will inquire as to the status of the transcript and as to whether the court's assistance is required to ensure the timely completion of the transcript.

10.3 Factums

1. The attention of the profession is drawn to rules 61.11 and 61.12 which deal with the appellant's and the respondent's factums. Particular regard should be had to the emphasis in these rules on the necessity for a "concise summary" of the relevant facts, a "concise" argument of the law relating to each issue and the requirement to cross reference the factum to the compendium. Appropriate cost sanctions may be imposed on respondents who do not file their factums within the time provided in Rule 61.12(2). [page656]

2. In the majority of appeals the length of the factum should be 30 pages or less.

3. If counsel is of the opinion that a factum of more than 30 pages is needed in any particular case, counsel should obtain leave from the chambers judge for the filing of such factum. On any motion to obtain such permission, the moving party must, other than in exceptional cases, include a copy of the proposed factum in the motion record.

10.4 Appeal Book and Compendium and the Respondent's Compendium

1. One of the important changes to the Rules of Civil Procedure respecting appeals to the Court of Appeal is the requirement that the appellant file a document entitled "Appeal Book and Compendium". This document, which combines and streamlines the former Appeal Book and the former Compendium, is designed to be an important working document for use by the court in preparation for and hearing of the appeal. The Appeal Book and Compendium contains documents essential to the hearing of the appeal including those excerpts from the evidence and the exhibits to be referred to by the appellant in argument.

2. Rule 61 requires that the Appeal Book and Compendium be filed together with the factum on perfection. It should be indexed in accordance with rule 61.10 in a way that permits the court to locate the documents referred to in the Appellant's Factum.

3. A respondent is entitled to file a "Respondent's Compendium". Documents contained in the Respondent's Compendium should be indexed to ensure that references in the Respondent's Factum are easily located.

4. The court considers the filing of the compendium essential to the efficient preparation and effective argument of the appeal both for the judiciary and counsel. As a result, the requirement [page657] to file an Appeal Book and Compendium or a Respondent's Compendium in all civil matters is mandatory, and must be complied with.

5. Where the proceedings in the lower court were conducted in full or in part on the basis of the filing of affidavit evidence, relevant extracts of the affidavits or of any attached exhibits are to be included in the Appeal Book and Compendium or Respondent's Compendium.

6. Any extracts of transcripts, affidavits or exhibits included in a compendium should include only as much material as is required to understand the context of the key portions of the extract.

10.5 Books of Authorities

It is of great assistance to the Court of Appeal to have casebooks filed containing photocopies of the authorities to which counsel intend to refer on the hearing of the appeal. Such casebooks of authorities:

1. Should include only the cases to which counsel have referred in the factum. The particular passages in the cases to which counsel wish to refer should be clearly marked.

2. 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. A joint casebook is, of course, acceptable.

3. Should have a tab for each case (either numerical or alphabetical), 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 casebooks so long as the photocopies show the page or paragraph numbers of each authority.

4. Should be filed, if possible, together with the factum but if not possible, then not later than Monday of the week preceding the hearing of the appeal as they are of great assistance to the judges in preparing for the hearing. [page658]

5. Copies of cases obtained from internet legal reporting services or other electronic databases are acceptable provided the report of the judgment contains paragraph numeration consistent with the numbering of the paragraphs in the judgment as released by the court. Counsel should be aware that judgments posted on the internet may be subject to correction or editing within a few days of the initial posting and accordingly counsel should ensure that a judgment so obtained has not been subsequently amended. Citations of any published versions should be given in addition to the citation of the electronic source. The date that the copy of the decision was obtained should be included if it was obtained from an internet or online source.

10.6 Filing of Material for Use on Appeal

1. Transcripts of evidence may be printed on both sides of the page.

2. Documents for use on an appeal, including transcripts of evidence, may be filed in miniscript.

3. The Rules of Civil Procedure require the filing of an electronic copy of all factums and the transcript for use on an appeal.

4. Where more than one appeal are to be heard together, counsel may obtain an order on consent or on motion permitting the filing of consolidated material, such as the Appeal Book and Compendium, the Exhibit Book, the Factum or the Book of Authorities for use on all of the appeals.

10.7 Use of Technology

1. Where the volume of material is large or the appeal is complex, the parties should consider the desirability of filing a copy of all of the material in an electronic format. Current technology, readily available to the public, permits the creation of the factums and transcripts in an electronic format and the conversion of most other documents into an electronic format. [page659]

2. The court has found it to be of great assistance to have the factum, the transcript, the exhibits, the appeal book and compendium, the respondent's compendium and the authorities converted into a usable electronic format with references in the electronic factums linked to the relevant references within the other materials.

3. The court is prepared to consider suggestions of counsel as to how complex appeals or appeals with large volumes of materials can be presented in the most efficient and effective way.

4. Such a decision should be made at an early stage in the appellate process and the assistance of an Appeal Management Judge should be obtained in order to ensure the timely and efficient production of material for use on the appeal.

11. SCHEDULING PROCEDURES

11.1 The List Judge

1. A judge of the court, designated by the Chief Justice as the List Judge, shall supervise the civil list.

2. The List Judge shall perform the duties set out in this practice direction.

3. Requests made for the assistance of the List Judge will be dealt with by conference call usually at 9:00 a.m., and may be arranged by contacting the Appeals Scheduling Unit by fax (416-327-6256).

11.2 Expedited Appeals

1. As a result of the success of initiatives to reduce the court's backlog, most civil appeals will be heard within six months of perfection. However, it is recognized that some appeals must be heard more quickly.

2. The following appeals shall be expedited without the necessity of obtaining an order to that effect:

(a) Family law appeals [page660]

(b) Summary judgment appeals

(c) Appeals that may delay the progress of an ongoing proceeding.

3. Counsel should advise the Appeals Scheduling Unit of the court by fax (416-327-6256) that an appeal meets one of these criteria.

4. Such appeals will be heard at the earliest practicable date, usually within three months of perfection.

5. If the proposed date for hearing such an appeal is unsuitable, a motion may be brought to a judge of the court in chambers for an earlier hearing date.

6. Other appeals may be expedited by a judge of the court on being satisfied, on motion, that the urgency of the matter is such that an early hearing date is necessary.

11.3 Special Provisions for Summary Judgment Appeals

1. Once perfected, summary judgment appeals shall be expedited and listed for hearing. The argument of summary judgment appeals will be limited to one hour: 30 minutes for the appellant, 20 minutes for the respondent, and 10 minutes for reply.

2. Where this time allocation is inadequate, counsel may make a request to the List Judge, arranged through the Appeals Scheduling Unit by fax (416-327-6256), for more time.

11.4 Other Appeals

1. Counsel shall certify in the factum his or her estimate of the time, in fractions of an hour or hours (e.g. 3/ 4 of an hour or 11/2 hours), of his or her oral argument not including, in the case of appellant's counsel, the time for reply.

2. The court expects counsel to provide realistic time estimates.

3. Prior to the scheduling of the appeal for hearing, a judge of the court will review the time [page661] estimate of the appellant and will assign time for the oral argument of each party.

4. The parties will be notified as to the assignment of time for oral argument when they are notified of the hearing date of the appeal.

5. These time assignments shall be published on the weekly court lists and shall be provided to the panel hearing the appeal. The court expects counsel to adhere to the time assignments.

6. Counsel who seek to change a hearing date set by the Registrar or who seek more time for oral argument must make a request to the List Judge arranged through the Appeals Scheduling Unit by fax (416-327-6256).

7. The court expects counsel to notify the Registrar immediately of any appeal that is settled or abandoned.

11.5 Appeals without Oral Argument

1. The court may decide appeals without oral argument, on the consent of counsel. Counsel who wish an appeal to be decided without oral argument shall, after delivering their factums, file a written consent with the Registrar.

2. In appeals without oral argument the appellant shall be permitted to file a reply factum, which must be served and filed within ten days of the filing of the respondent's factum.

3. Where practicable, the court shall render judgment within 60 days of the filing of the consent.

11.6 Appeals by Videoconference

1. The Court of Appeal has recently upgraded its videoconference facility and as a result is in a position to hear motions and appeals from multiple locations by way of videoconference. The utilization of videoconference technology may result in savings of both time and expense to counsel and litigants.

2. Arrangements to argue a motion or appeal by videoconference may be made through the office of the Registrar. [page662]

12. COSTS IN THE COURT OF APPEAL

1. Amendments to the Rules of Civil Procedure incorporated a new "costs grid" and require that, generally, a court hearing a matter fix the costs of the proceeding.

2. Counsel appearing in the Court of Appeal are advised that they should be prepared to address all issues of costs, including the quantum of costs, at the hearing of an appeal or a motion.

3. All counsel who may be entitled to costs must prepare and exchange their proposed bills of costs, to be filed at the time of argument if requested by the court. This bill will be complete to the point of the day before argument but will include an estimate of the counsel fee for the hearing of the appeal or motion.

4. If the decision on the appeal or motion is to be released orally immediately after the hearing, counsel will have an opportunity to make brief submissions as to the quantum and scale of costs to be paid.

5. If the decision on the appeal or motion is reserved, the filing of the bill of costs and submissions will usually occur at the hearing.

6. However, the court may determine that it would be preferable to defer such submissions to a time following release of the decision of the court. Unless the court orders otherwise, a party entitled to receive costs will deliver a bill of costs together with any submissions, in writing, in support of the requested order for costs within seven (7) days of the release of the decision. Any party liable to pay costs may deliver a response, in writing, within fourteen (14) days of the release of the decision. The party entitled to receive costs may deliver a brief reply within seventeen (17) days of the release of the decision.

7. Such material should be filed in triplicate, together with proof of service, to the attention of the Appeals Scheduling Unit.

8. Unless the court orders otherwise, any material received in relation to costs, will be forwarded to the [page663] court for consideration eighteen (18) days after the release of the decision. The parties will be notified of the decision as to costs by way of an addendum to the decision.

13. POST HEARING SUBMISSIONS

1. Counsel are expected to make their full argument with respect to all issues under appeal within the factum and in oral submissions at the hearing of the appeal. The court is concerned with the increasing frequency that counsel seek to supplement their written and oral argument after the hearing by attempting to provide written submissions, additional argument, additional cases or other material directly to members of the court.

2. From time to time, after the hearing of an appeal has been concluded, the court may wish to receive further submissions from counsel in respect of one or more issues. Counsel will be advised of the request by the Senior Legal Officer and will be given a timetable within which to serve and file material.

3. Occasionally counsel may become aware of a newly decided authority that may have an impact on the appeal. Counsel may file the authority, without submissions, to the attention of the Senior Legal Officer who will ensure that the material is transmitted to the panel that heard the appeal.

4. If counsel wish to make submissions as to the impact of such new authorities, they should include a request to do so in a covering letter addressed to the Senior Legal Officer and copied to other counsel. Counsel will be advised as to whether the court is prepared to entertain such submissions, and if so, will be advised as to a timetable within which to serve and file submissions.

5. In exceptional circumstances, counsel may seek to make additional or new submissions to the court while an appeal is under reserve or after the decision has been released. The request, outlining the essentials of the argument and the reasons that it was not made at the hearing of the appeal, should be made in writing to the attention of the Senior Legal Officer. [page664] Opposing parties may respond, in writing, to the request. The Senior Legal Officer will consult with the court and advise counsel as to whether further submissions will be entertained.

6. This process is not to be viewed as a substitute for proper preparation of the factum and full argument at the hearing of the appeal.

This Practice Direction comes into force on January 1, 2004.

Dated at Toronto this 7th day of October, 2003.

R. Roy McMurtry Chief Justice of Ontario