The Ontario Small Claims Court handles claims of up to $50,000 in Ontario. Over 65,000 new proceedings were commenced in the Small Claims Court in 2025. This represents nearly half of all civil actions commenced in Ontario.[1]

A party inevitably loses in a Small Claims Court trial.

In this blog, I explore some practical considerations when deciding whether to appeal a decision.

 

Appeal Procedures

A party has an automatic right to appeal a Small Claims Court decision to the Divisional Court if their claim is more than $3,500.

If a party wishes to appeal a decision, they must deliver a “Notice of Appeal” within 30 days after the decision is released by the Court.

Common Reasons to Appeal

1. I believe the judge made a legal error

If a judge made a legal error, the appeal court can replace the opinion of the judge with its own.[2]

I often use this simple example to illustrate what is a legal error – a judge ruled running a red light is legal. That is an error of law.

Here are some examples of an error of law:

  • Applying the incorrect legal principles: In other words, the judge got the law wrong.
  • Insufficient reasons: Reasons in a decision that are not sufficient to understand the “what” and the “why” of the outcome.[3]
  • An unfair hearing: For example, the Court did not give a fair opportunity to a party to present their case.[4]

 

2. I disagree with the judge’s findings of facts

Challenging a judge’s finding of facts is difficult and requires the appellant to show the judge made a “palpable and overriding error”. The threshold is high.

An appeal is not an opportunity for a party to re-try/re-litigate the case.[5]

An appeal court must respect and defer to a judge’s findings of facts because the judge sat through the entire case, assessed the evidence, and heard the witnesses firsthand.[6]

If a trial judge made a finding of fact based on no supporting evidence, irrelevant evidence, or irrational inference[7], then it could be a “palpable and overriding error”.

An appellant cannot merely argue they disagree with the judge’s findings of facts. They must put their finger on the judge’s mistake that is obvious and plain to see.[8]

 

3. I disagree with the judge’s assessment of the credibility or evidence

Challenging a judge’s credibility or evidence assessment is equally difficult.

Credibility findings by a trial judge are entitled to a high degree of deference, as the trial judge is in the best position to observe the witnesses and make findings concerning credibility and the weight to attach to the evidence.[9]

Similarly, an appeal court cannot second guess the weight a judge assigned to certain items of evidence if there is no overriding error.[10]

 

Legal Fee Exposure

In an appeal to the Divisional Court, by default, the losing party pays a portion of the successful party’s legal fees (in addition to paying their own legal fees).

In my experience, that amount is in the range of $5,000 to 10,000:

  • In an appeal that is not complex, the court ordered the unsuccessful appellant to pay the respondent $7,000 in legal fees;[11] and
  • In a recent appeal that I successfully resisted, the unsuccessful appellant was ordered to pay my clients approximately $10,000 in costs (i.e. legal fees).[12]

Practically speaking, given the upfront costs, it might not be worth hiring a lawyer to appeal a Small Claims Court award of less than $25,000.

If you are considering whether to appeal a Small Claims Court decision, please feel free to contact us for legal guidance.

 

[1] Ontario Superior Court of Justice: Progress in the Public Interest – 2024 – 2025 Report, pp. 26 and 72.

[2] Housen v. Nikolaisen, 2002 SCC 33 at para 8.

[3] Elnasr v. Mostafa, 2022 ONSC 1735 at para 32.

[4] Abara v. Hall and Lee, 2022 ONSC 7093 at para 37.

[5] 1201059 Ontario Inc. v. Pizza Pizza Limited, 2015 ONSC 1208 at para 5.

[6] Housen v. Nikolaisen, 2002 SCC 33 at para 18.

[7] Achaia-Shiwram v. Intact Insurance Co., 2024 ONSC 5479 at para 19.

[8] Housen v. Nikolaisen, 2002 SCC 33 at para 5.

[9] Stokes v. Gasparini, 2018 ONSC 4340  at para 25.

[10] Jones Feed Mills v Raivio, 2017 ONSC 2118 at para 15.

[11] Royal Bank of Canada v. Lendak, 2024 ONSC 7044 at para 87.

[12] Cheng v. Li, 2024 ONSC 7400.



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