Appealing Court Decisions


In the context of employment law, only a small percentage of cases go all the way to trial. Many jurisdictions provide for mandatory mediation, and the Rules of Civil Procedure contain many incentives for the parties to reach a settlement rather than having the Court decide through a trial. Moreover, as I have written about previously, there are options for speeding up the process and avoiding a full-blown trial, including Summary Judgment motions and Summary Trials.

However, if your case does go all the way to trial and you successfully obtain a Judgment requiring the defendant to pay you:

  • Can the other side appeal that decision and delay payment?
  • What happens if there is a Summary Judgment motion, and you don’t agree with the result?
  • How about with other motions that don’t fully decide the case?

Clients often ask us what the process would be for appealing a Court decision, and understanding your rights to appeal are important for deciding which steps to take in your case.

Appealing a Final Order by the Court

A party’s rights of appeal depend largely on whether the Court’s order is “final” or “interlocutory”. A final order is one that finally determines an issue in the case, either in favour of the plaintiff or the defendant. The following are examples of a final order by the Court:

  1. A trial decision, either granting Judgment in favour of the plaintiff or dismissing their claim.
  2. An order at a Summary Judgment motion, either granting Judgment in favour of the plaintiff or dismissing their claim.
  3. An order finding that certain claims brought by the plaintiff are out of time pursuant to the Limitations Act.

A party is entitled to appeal a final order as a right. These appeals are brought to the Court of Appeal, and the moving party does not need to obtain the Court’s permission to bring the appeal. A party can commence an appeal to a final order by delivering a notice of appeal, which is a relatively simple document that sets out the grounds for the appeal, among other items.

Appealing an Interlocutory Order

Interlocutory orders are orders that do not finally determine any issues in the case, but rather either decide procedural issues or temporarily determine issues that can be argued again at trial.

The following are examples of an interlocutory order by the Court:

  1. An order dismissing a Summary Judgment motion, and directing that the matter instead proceed to trial.
  2. An order extending a timetable or allowing a party to file a document after the time limit has passed.
  3. An order that the matter can be heard as a Summary Trial.

To appeal an interlocutory order, the moving party must first bring a motion for leave to appeal, in which they will ask the Court for permission to commence their appeal. If their motion is granted, the appeal will be brought to the Divisional Court.

The question of whether an order is final or interlocutory can sometimes be more complex than it may seem. For instance, a Court decision on a motion to amend a pleading can either be final or interlocutory, depending on the amendments at issue and the nature of the Court’s decision. An order that does not decide any of the claims brought by the plaintiff, but determines an issue raised as a defence, could be considered a final order.

When contemplating an appeal, it is best to seek legal advice from a lawyer who has experience in appeals, otherwise you could end up in the wrong appeals Court or taking the wrong procedural steps.

Stay Pending Appeal

Once an appeal has been commenced, any provision in the order under appeal for the payment of money is automatically stayed (i.e., suspended) pending the appeal. This rule applies both for appeals of final orders and appeals of interlocutory orders.

That means that if the defendant commences an appeal of a Judgment requiring them to pay money to the plaintiff, they will not actually be required to pay the money until after the appeal has been disposed of.


Even if your matter goes all the way to trial, a Judgment will not always be the end of the matter. Your case could continue to an appeal, and a monetary Judgment will be suspended until the appeal is dealt with.

Whether you are an employee or an employer that is a party to litigation, we can help you determine the best steps to take and the appropriate way to protect your interests. If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.

Other Blogs

Stuart and others on the team at Rudner Law are frequent contributors to the following sites: 

First Reference Employment Law Resources
Canadian HR Reporter Blog
Rudner Employment Lawyer in the Lawyer's Daily
Legal Matters Employment Law Canada

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