Appeals (12)

Procedure for appeals in Ontario should be, and usually is, fairly straightforward.  A Notice of Appeal is filed; the appellant perfects the appeal; the respondent (as its name implies) responds.  As two recent decisions from the Court of Appeal and the Divisional Court show, if a lawyer (or party) is not familiar with court practices that are not part of the Rules of Civil Procedure, the process can quickly go off the rails.

A few days ago, the Globe and Mail published an editorial titled "A Supreme Court Justice Struggles to Make an Impact".  The gist of the article is that Justice Karakatsanis, appointed to the Supreme Court of Canada in October 2011, has "written only three decisions on her own", and therefore is struggling.  The article has taken some flac (see this blog posting at, for example), and seems to be somewhat light on the facts (actually, it is flatly wrong on the main fact it presents, but more on that below).  So let's look at the underlying numbers, and see what they really have to say.

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2012 Ontario Court of Appeal - In Review

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2012 was a year of transition for the Ontario Court of Appeal, with 4 new judges being appointed, in addition to the appointment of Justice Hoy late in 2011.  Last year I wrote some articles looking at some Court of Appeal statistics (some examples are here, here and here), so here is an update for 2012.  The short version being that the court was fairly busy this year, notwithstanding the turnover in judges, helped in part due to heavy use of "ad hoc" judges pulled from the Superior Court bench.

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State of the Court of Appeal

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This has definitely been an interesting past year or two for the Ontario Court of Appeal.  After a long period of relative stability on the Court of Appeal bench, there have been 2 appointments to the Supreme Court and 3 other judges becoming supernumerary (meaning they are semi-retired, for those that aren't familiar with the lingo) since last October.  Chief Justice Winkler spoke about this at the recent opening of the courts ceremony, so I though it would be interesting to compare his comments to what we're seeing as far as Court of Appeal decisions so far this year.


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Assessing the Strength of an Appeal

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A while back I did a post on the likelihood of an "average" appeal being granted at the Ontario Court of Appeal (  This is a followup of sorts to that, where we delve into the numbers in a little more detail, and discuss what practical benefit there is to knowing these numbers.  The bottom line: if you really want to know how likely you are to win an appeal, you need to know the baseline for success at the Court of Appeal.

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New Court of Appeal Judges

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Justice Ducharme and Justice Pepall were appointed to the Ontario Court of Appeal on April 10, 2012 (announcement).  In the last few weeks, they've started sitting on appeals, and their first decisions are starting to trickle out.  Justice Ducharme's first decision was on May 1, 2012, on a summary judgment appeal in Cosford v. Player, 2012 ONCA 276.  Justice Pepall's first came out a couple weeks later, also on a summary judgment appeal, in N.R. v. CAS (Toronto), 2012 ONCA 315.  Interestingly, Justice Ducharme was also on the panel in the N.R. case.

Another interesting side note: Justice Hoy (the last appointment prior to Justice Ducharme and Justice Pepall's appointments) was a litigator at Lang Michener.  Justice Pepall was a litigator at McMillan Binch.  Lang Michener and McMillan merged on January 1, 2011 (after both had become Superior Court judges), and now operate collectively as McMillan LLP.  So in a technical sense, two of the last three Court of Appeal appointments are former McMillan LLP lawyers.

Last week I blogged about some stats on decisions in civil cases at the Ontario Court of Appeal.  You can read it here - Today I'm taking a similar look at how the Court of Appeal judges deal with criminal cases.  As discussed below, unlike civil cases, there does not appear to be any statistically significant differences between the likelihood of any particular judge granting a criminal appeal.

After a general primer on methodology (here), a look at the Court of Appeal's general results (here) and a quick diversion about the court dealing with Friday cases differently (here), now we get into the meat of the analysis: the idiosyncracies of the different judges. Which judges are more likely to intervene and allow an appeal?  Which judges are quick on the draw, and more likely to release a decision orally?  How long do the different judges take to release decisions under reserve?  Let's see what the numbers say about civil cases (criminal cases to follow in a later post).

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Statistical TGIF at the Court of Appeal

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Before we get into some more detailed statistics in some later posts, one of the easier statistics to look at is whether cases are resolved differently depending on when they are heard. A well publicized study of Israeli judges indicated that their decisions depended on how close to a food break the case was heard.  While we can't drill down into that much detail in our numbers, we can look at it from a broader perspective based on the day of the week, or the month, that it was heard.  This still gives us some interesting numbers (including the fact that judges are much less likely to reserve their decision on a Friday, or right before vacation time).

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How Often Are Appeals Successful?

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One of the obvious questions a litigant needs to ask before starting an appeal is how likely are they to win their appeal?  In order to answer this question, a lawyer should start with a baseline (how often does any appellant win an appeal) and adjust based on the particular circumstances of each case.  So before we start talking about more detailed numbers (such as judge-by-judge numbers), we can start by looking at the court of appeal as a whole.  As you can see below less than 1 in 3 appeals is successful at the Ontario Court of Appeal.