Order, Judgment, Appeal – Litigation #13

Orders are the court’s formal rulings on issues between parties, governed by Rule 59 of the Rules of Civil Procedure. An order can address a wide range of matters, some are procedural, others substantive. For example, an order could direct a party to produce documents, grant an injunction, or strike a claim.

Final vs. Interlocutory Orders
Orders come in two primary forms:

1. Final orders resolve the entire case or a substantial legal issue. They typically bring an action or application to an end.
2. Interlocutory orders address temporary or procedural matters that arise before the final resolution, for example, scheduling deadlines or production disputes.

Retroactive Orders (Nunc Pro Tunc)
Courts also have the power to issue retrospective orders, including so-called nunc pro tunc orders (Latin for “now for then”). This type of order allows a judge to correct the record or deem something to have occurred at an earlier date, effectively “rewriting” the past to reflect what should have happened. For instance, an order can be backdated to correct a procedural irregularity or ensure continuity in litigation.

Amending Orders
Once an order is issued, it can still be amended, but only in limited circumstances and usually by motion:

• If the order was made on consent, variation is more difficult unless the original order expressly provides for changes.
• For other types of orders, a party may bring a motion to amend based on newly discovered evidence or where the original order contains an error.
• Courts retain discretion to vary orders where justice requires, but the threshold is high.

An amended order must still reflect the court’s original intention unless there is strong justification for the change.

A judgment is a specific kind of final order. It is rendered at the conclusion of a trial or application and formally disposes of the matter. When a court issues a judgment, the legal dispute has reached its end, subject to any rights of appeal, of course.

Endorsements and Reasons
When a judge renders a decision, it often begins with an endorsement, a brief notation recording the ruling. Historically, endorsements were handwritten on the back of court documents; today, most are electronic and typed. An endorsement typically includes:

• nature of the motion or hearing
• the outcome
• a brief explanation of the judge’s reasoning
• judge’s signature or initials

In more complex matters, the judge may provide detailed reasons for decision, which accompany the judgment. While the order sets out what the court has decided, e.g., “motion granted”, or “claim dismissed, the reasons explain why the court reached that conclusion.

Reasons are particularly important on appeal. Although an appeal is taken from the order, appellate courts rely on the reasons to determine whether the trial judge made an error of law or principle.

Drafting and Entering the Judgment
The process does not end once the judge makes a ruling. The successful party must draft the official order or judgment to reflect the court’s decision. The draft must include:

• the names of the parties
• the hearing date
• the nature of the proceeding
• the operative part of the judgment

This draft is then sent to the opposing side for approval. If both parties agree on the wording, it is submitted to the court to be issued and entered, that is, stamped with the court seal and added to the official court record.

It’s important to know that, a judgment takes effect immediately once granted. The drafting and entry process is procedural; it does not delay the enforceability of the court’s decision.

Interest on Judgment
Where money is awarded, interest is governed by sections 127 to 130 of the Courts of Justice Act. Two types of interest may apply:

1. Pre-judgment interest compensates for the time between when the cause of action arose and when judgment is granted.
2. Post-judgment interest accrues from the date of judgment until the amount is paid.

These interests are calculated at rates set by regulation, unless otherwise specified in the judgment itself.

Losing in court doesn’t always mean the story is over. In Ontario civil litigation, the right to appeal, or the ability to seek permission to appeals, offers a second chance. But appeals are governed by complex rules, and not every order or judgment can be appealed in the same way. 

Legal Framework
Appeals in Ontario are governed by the Courts of Justice Act (CJA, especially sections 6, 17, 19, 31, 40, and 132–134), and Rules 61 to 63 of the Rules of Civil Procedure. These provisions outline who can appeal, when, how, and to which court.

Two Pathways: Right of Appeal vs. Leave to Appeal
Before taking any step, a party must determine whether the appeal can be brought as of right, or whether they must first seek leave (permission) from the appellate court.

• Appeal as of right:
  • In some cases, a party may file a notice of appeal directly, no permission needed. This usually applies to certain final orders that dispose of substantive issues.
• Leave to appeal:
  • In other cases, particularly with interlocutory orders,  those that deal with procedural or temporary matters, a party must bring a motion for leave. The burden is on the moving party to show that the issue is significant enough to warrant appellate review.

Knowing which applies is critical and depends on the nature of the decision being appealed.

Appeal Routes – Where Do You Go?
Not all appeals go to the same place. The route depends on whether the order is final or interlocutory, and which court or judicial officer issued the decision:

• Final Orders
  • From a case management judge → Appeal lies to the Divisional Court.
  • From an assessment officer (in a Superior Court case) → Appeal goes to a judge of the Superior Court of Justice.
  • From an assessment officer (in a Court of Appeal case) → Appeal goes to the Court of Appeal.
  • From a judge of the Superior Court of Justice:
    • Some go to the Divisional Court.
    • Some go directly to the Court of Appeal, depending on the nature of the decision.
  • From the Divisional Court → Appeal to the Court of Appeal requires leave.
  • From the Court of Appeal → Further appeal to the Supreme Court of Canada (SCC) always requires leave. There is no longer any “appeal as of right” to the SCC in civil cases.
• Interlocutory Orders
  • From a case management judge → Appeal is to a judge of the Superior Court of Justice, and does not require leave.
  • From a judge of the Superior Court of Justice → Appeal lies to the Divisional Court, but only with leave under CJA s.19(1)(b) and Rules 61.03 and 62.02.
  • From the Divisional Court (on interlocutory matters) → Appeal to the Court of Appeal also requires leave, and leave is very difficult to obtain.
  • To the SCC from interlocutory decisions → Technically possible, but extremely rare.

Timing, Process, and Immediate Steps
Once a judgment or order is received, timelines for appeal begin to run quickly. Lawyers must immediately determine:

• What type of order was made (final or interlocutory)?
• Which court has jurisdiction to hear the appeal?
• Whether leave to appeal is required?
• What are the deadlines for filing?

Failing to act promptly may result in losing the right to appeal altogether.

Stay Pending Appeal – Rule 63
In many cases, the party appealing a judgment may also want to prevent enforcement of that judgment while the appeal is ongoing. This is called a stay pending appeal.

• What is a stay?
  • A stay temporarily suspends the effect of an order or judgment. It can prevent actions like the enforcement of a money judgment or the execution of a court order.
• Who seeks it?
  • Usually, the losing party seeks the stay to avoid immediate consequences while the appeal is pending. Occasionally, the winning party may also request a stay, for example, to preserve the enforceability of a judgment that may be compromised by the other side’s financial instability.
• Is a stay automatic?
  • In some cases, the filing of a notice of appeal automatically stays enforcement. But in most cases, a party must apply for a stay under Rule 63, and the court has discretion whether to grant it.

Strategic Considerations
Appeals are not second trials. They are a review of the trial judge’s reasoning and legal application. Success on appeal is difficult and usually depends on identifying a clear legal error or a significant misapprehension of the facts. Costs can also be significant, so litigants should weigh the strength of their grounds for appeal against the potential risks and delays.

Winning in court is only half the battle. Many litigants assume that once a judgment is issued, the losing party will promptly pay up. In reality, that’s rarely the case. Unless the judgment debtor complies voluntarily, the winning party must take further steps, sometimes complicated, often frustrating, to actually collect what’s owed. This is where enforcement procedures come in.

In Ontario, enforcement is primarily governed by Rule 60 of the Rules of Civil Procedure and the Execution Act. These mechanisms allow successful parties to compel compliance with monetary judgments when the losing party fails to pay.

Writ of Seizure and Sale
A writ of seizure and sale allows the judgment creditor to seize and sell the debtor’s real or personal property to satisfy the judgment. Once filed with the sheriff’s office in the appropriate county, the writ binds the debtor’s assets in that jurisdiction. If the debtor owns property in multiple counties, the writ must be filed separately in each one.

This process is commonly used but requires time and procedural precision. The sheriff cannot act without proper documentation, and the sale of property must comply with statutory rules.

Examinations in Aid of Execution
When a judgment debtor fails to pay, the creditor can summon them for a judgment debtor examination, which is a court-supervised questioning session to uncover information about the debtor’s income, assets, and ability to pay. This examination can reveal avenues for enforcement, such as bank accounts, employment income, or owned assets.

It’s a practical tool that allows the winning party to make informed decisions about what enforcement steps to take next.

Sale of Debtor’s Real Property
If real estate is involved, the sale of the debtor’s property requires strict procedural compliance. This includes preparing and serving a notice of sale, arranging for public advertisement, and securing necessary court approvals. If the process is properly followed, the creditor may ultimately force the sale of the property to satisfy the judgment.

Garnishment
Garnishment allows a judgment creditor to intercept funds that are owed to the debtor by a third party, such as wages, rent, or bank deposits. For example, an employer may be directed to withhold part of a debtor’s pay and forward it to the creditor.

However, not all income sources are fair game. Certain assets are protected by exemptions from execution. For instance:

• CPP payments and other government pensions are generally protected
• Essential tools of trade and basic personal effects cannot be seized

These rules aim to balance enforcement with the debtor’s basic living needs.

Distribution of Recoveries
When multiple creditors seek enforcement against the same debtor, the distribution of recoveries is handled in accordance with statutory rules to ensure fairness. The goal is to treat similarly-situated creditors equitably and prevent any one party from jumping the queue.