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Appeals - Leave to Appeal - R62.02 Interlocutory Leave

The Rules of Civil Procedure has two main sets of leave to appeal procedures, the main one under R61 [R61.03 (Divisional Court) and 61.03.1 (Court of appeal)], and another - less frequent - under R62.02 (Interlocutory Orders). This page about the latter.

. Mehedi v. Tamlin

In Mehedi v. Tamlin (Div Court, 2023) the Divisional Court mentions [at para 7] the R62.02(4) grounds for leave to appeal an interlocutory order to the Divisional Court, which reads:

(4) Leave to appeal from an interlocutory order shall not be granted unless,

(a) 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 panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel 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 the panel’s opinion, leave to appeal should be granted.

. Huggins v Hayhurst

In Huggins v Hayhurst (Div Court, 2023) the Divisional Court considers the leave to appeal test under R62.02(4) [interlocutory orders to Divisional Court]:

[4] While we have the discretion to grant leave to appeal even at this stage, we would not do so. The test for leave in r. 62.02(4) of the Rules of Civil Procedure is a stringent one. Leave may be granted only where there is a conflicting decision by another judge in Ontario and the panel is of the opinion that leave should therefore be granted or where there is good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that the panel believes leave should be granted.

. Efthymiadis v. Universal Protection Service of Canada Corp.

In Efthymiadis v. Universal Protection Service of Canada Corp. (Div Court, 2022) the Divisional Court considered the test for extending time for a leave to appeal motion, here from an interlocutory order [R62.02(4)]:

[4] Rule 61.03(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that where leave to appeal to the Divisional Court is required, the notice of motion for leave must be served within 15 days of the making of the order from which leave to appeal is sought. Pursuant to Rule 3.02 of the Rules, the court may exercise its discretion to extend the time for service of a notice of motion for leave to appeal.

[5] The test that the moving party must meet for an extension of time to file a notice of appeal is well-settled. In deciding whether to exercise its discretion to grant an extension of time, the court will consider the following factors:

(a) Whether the Appellant formed an intention to appeal within the relevant period;

(b) The length of the delay and explanation for the delay;

(c) Any prejudice to the Respondent;

(d) The merits of the appeal; and

(e) Whether “the justice of the case” requires it.

Heliotrope Investment Corp. v. 1324789 Ontario Inc., 2021 ONCA 23, at para. 24.

[6] The Court of Appeal has further held that while courts consider different factors, the governing principle is whether the “justice of the case” requires than an extension be given: Heliotrope Investment, at para. 25.

[7] On a motion to extend the time to seek leave to appeal, the same test is applied. The court must consider the merits of the motion for leave to appeal, as opposed to the merits of the appeal itself: Samuels v. Canada (Attorney General), 2016 ONSC 6706, at para. 20.

[8] Rule 62.02(4) states that “leave to appeal from an interlocutory order shall not be granted unless”:

a) 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 panel hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the panel 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 the panel’s opinion, leave to appeal should be granted.

. Justice for Children and Youth v. J.G.

In Justice for Children and Youth v. J.G. (Div Ct, 2020) the Divisional Court considered whether leave to appeal should be granted, if the order was interlocutory:

[37] In any event, if we had concluded that the order was interlocutory, we would have granted leave to appeal pursuant to the test in Rule 62.02(4)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. There is good reason to doubt the correctness of the order and the underlying issue – the right of a child to consult with counsel – is of general importance.[4] It is for this reason that we do not accept counsel for the father’s argument that leave should not be granted given this Court’s recent decision in Lokhandwala v. Khan.[5] In that case, this court stated:

Under either branch of the test under R.60.02(04) [SS: should be R62.02(4)], the moving party must show an issue that rises beyond the interim interests of the particular litigants: for example, are there questions of broad significance or of general application that warrant resolution by a higher court because they affect the development of the law and the administration of justice: Ash v. Lloyd’s Corp. (1992), 1992 CanLII 7652 (ON SC), 8 OR (3d) 282 (Gen. Div.); Greslik v. Ontario Legal Aid Plan (1988), 1988 CanLII 4842 (ON SC), 65 OR (2d) 110 (Div. Ct.). Further, even where there is an issue of “importance”, leave will still not usually be granted where that issue will still be available for appellate adjudication after trial: Silver v. Imax (2011) ONSC 19035, paras. 46 and 55.

[38] The issue on this appeal is of broad significance in that it affects the administration of justice. Depriving a young person of the ability to seek and receive legal advice from a lawyer is a profound derogation from that young person’s rights.