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ENFORCING OR APPEALING A JUDGEMENT OR ORDER AND OBTAINING YOUR COSTS

A judgment is considered as a kind of order that a court issues.

At the end of a proceeding, a judgment is pronounced. It is a decision that finally disposes of an application or action on its merits, but does not include an adjudication on an interlocutory motion that arises during the course of a proceeding. Generally, there is only one judgment in an action. More than one final judgment is given in a proceeding if several causes of action or issues are decided at different times, like a plaintiff getting a default judgment against one defendant, a summary judgment against a second defendant under one of the causes of action pleaded against that defendant and so on. Not every proceeding ends in a judgment, and may be disposed of by means of an order. For example, an application to wind-up a pension plan, does not involve a suit between parties. Since it is not a determination of a right between parties, the disposition of it will be in the form of an order.  After the order has been passed, it has to be endorsed on the appeal book, appeal record, notice of motion, or notice of application, unless circumstances make it impractical to do so.  This is known as the endorsement, since the judge or master is required to record the disposition in writing on the reverse side of the motion, application, or trial record, and to sign his or her name.

Orders

An order is given on an issue between or among parties, including an interim procedural matter. This is in the Courts of Justice Act (CJA) and the Rules of Civil Procedure (Rules), but the definitions are not exhaustive, and simply state that Orders can include a judgment or decree.  Orders can be made with retrospective effect or nunc pro tunc (meaning “now for then”). For instance, if service of a document was not properly effected but the document came to the attention of the party to be served, a court may order that service of the document be deemed to have been properly effected nunc pro tunc.  The order is regarded as final if it finally disposes of the plaintiff’s or applicant’s entire claim, or an important issue in the overall dispute between the parties. Otherwise, it is considered to be interlocutory. The distinction between final and interlocutory orders is a difficult matter to ascertain and cases continue to go to court to determine if  the order in question was final or interlocutory. For this reason, a reference to decided cases is indispensable in such matters.  The date on which it was passed and the name of the judge or officer who made it should be stated in the order along with a recital or preamble disclosing with particularity the nature of the relief that was sought in the notice of motion.

Appeals

In the matter of appeals, issues to be considered include whether or not leave to appeal is required, jurisdiction of the courts to hear appeals, timing, and filing requirements. Then, Practice Directions guide the procedure on appeals (and other procedural matters as well), and have to be a reference source.

It is accepted that a judge may not sit as a member of a court hearing an appeal from the judge’s own decision. There is, however, a provision of appeal giving  the court  to which an appeal is taken three options.  These options do not order new trials in civil matters unless some substantial wrong or miscarriage of justice has occurred, and if the wrong or miscarriage only affects part of an order or decision or some of the parties, the new trial may only be in respect of that part or those parties. The court to which an appeal is taken also has the power, on a motion, to make any interim order that is considered just to prevent a misuse of justice.

A few of the appeals are a matter of right while others require the permission of the court to which the party wishes to appeal. There are two specific contexts in which the need for permission is legislated.

If the order is interlocutory and leave to appeal is required, there must be compliance with specific provisions for this purpose. Leave to appeal will not be granted unless:

  • Another judge or court in Ontario or elsewhere on the matter holds a conflicting decision and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
  • there appears to the judge hearing the motion convincing reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the opinion of the judge, leave to appeal should be granted.

Enforcement of orders

The basic procedures for enforcing orders, orders that deal with the recovery of property, as well as the payment of money are delineated in the rules.  The idea is to permit a judgment creditor to invoke the power of the court to take control of assets of the judgment debtor. Assets that may be seized and sold to satisfy judgment debts are a subject matter of the writ of seizure and sale. Garnishment can be compared to the icing on the cake, a mechanism for intercepting payments of debts owing to the debtor by third parties.

Basic principles of costs

In the Canadian system of civil litigation the general principle is that “costs follow the cause,” meaning that the successful party in a legal proceeding will be awarded, and will be entitled to collect from the unsuccessful party, its legal costs. Anyway, it is discretionary and the factors that the court is required to weigh are well set out. However, the court is not precluded from ordering costs against a successful party in a proper case.

Any offers to settle under the general rule regarding costs is subject to a specific provision. The term costs refers to the fees charged by the party’s lawyer, together with the many disbursements that must be incurred throughout the proceeding.  Incidentally, the court does not charge for use of its facilities, nor do the judges clock the litigants for their time.

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