The Supreme Court of Canada is truly every litigant’s last kick at the proverbial can. You may have fought the good fight and won at trial, only to lose before a provincial appellate court. Or you might might have lost in every court, but believe your case is worth one last shot. The Supremes have the last judicial word word as the highest court in Canada.
But you don’t have a right to go to the SCC in almost all but a few very narrow situations. You’ve got to ask for permission, known as seeking leave to appeal. Only about 1 in 10 cases that seek leave are granted it. Here are my top 5 tips to maximize your chances of grasping that golden leave ring.
1. Be on Time With Serving and Filing for Leave to Appeal
You’ve only got 60 days from the date of the judgment you’re seeking leave to appeal on to serve and file a complete leave to appeal application with the Supreme Court of Canada. We’re not talking just a flimsy notice here, but rather filing the entire package (which is why they’re giving you 60 days, rather than the more common 30 days to file a notice of appeal).
Far better a so-so leave to appeal application record filed on time, than a perfect application filed late. Courts hate extending statutory limitation period filing deadlines. If you miss the 60 day limitation, you’re probably dead, even though technically you can ask for an extension.
2. Understand Limits of S. 40 Supreme Court Act Jurisdiction
Only judgments from the highest court of any province, or the Federal Court of Appeal, can usually be subject to a Supreme Court of Canada leave application. There are a few rare exceptions to this, but generally you need to have exhausted all possible appeals in the provincial or federal courts system before petitioning the Supremes.
However, importantly you don’t need a “final” judgment on which to seek leave. An interlocutory temporary order could be just as much the subject of a leave to appeal application.
3. Know How to Sell the “Public Importance” Test
The Supremes don’t care if you’ve been wronged by a court of appeal. They don’t care if a court of appeal erred in law. They’re already perhaps the busiest court of last resort in the Commonwealth. They don’t need any more work.
So Parliament set out in s. 40 of the Supreme Court Act that they should only take on appeals where “the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or mixed fact and law involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it….”
What this means in practice is that you’ve got to sell the ramifications of your case, and the appellate judgment concerning it that you want to overturn, as extending way beyond your personal facts. Ideally, you want to sell it as being so publicly important, that it’s of national importance, though “national” isn’t an official requirement.
4. Why is This the Right Issue, on the Right Record, at the Right Time
Veteran of the Supremes Mr. Justice Cromwell suggested in a seminar selling the Court on why this is the right issue, on the right record, at the right time, in order to best convince them why they should give you leave.
The right issue point is selling public importance. But his point was that’s only a third of the test, which also requires you to persuade that the record is right, meaning that the facts aren’t a total mess, or completely absent, such that the Court would be able to come to a sensible legal decision based on a full coherent factual record, rather than waiting for a similar case to come along that perhaps has clearer facts.
His last point of the “right time” at least in part revolves around when the Court might have last considered the issue (if ever), whether Parliament has or is considering the issue by way of legislative solution, and whether the appellate courts of the provinces have sufficiently considered the issue so as to have evolved into a contradictory jurisprudential patchwork that requires clarification.
5. You Must Use an Ottawa Agent
Courts can be a little traditional in their practices. The Supreme Court of Canada was established in days of horse and buggy, where getting materials out of Montreal, or Toronto, or even Vancouver to be filed with the Court could be quite an ordeal. And just like courts today, there was a good chance that once your materials did land on the desk of the Court Registrar, some technical thing was going to be found wrong with them.
Technical deficiencies in court materials can have really simple, one hour, swap out a document for another document types of fixes, but not if your horse and buggy - or rail car - needed to travel back to Montreal, Toronto or Vancouver to make the fix. Plus the SCC rules are quite unique as compared to the rules of any other court, meaning you don’t want lawyers trying to interpret them who only deal with one case there every 20 years.
Section 16 of the Rules of the Supreme Court of Canada provide that “A party to an appeal or to a reference to the Court shall only conduct business with the Registrar through an agent.” Section 2 of the Rules defines “agent” as “a lawyer practicing in the National Capital Regional within the meaning of the National Capital Act.” There are a few of us local to the NCR who both conduct SCC appeals (and leave to appeal applications), as well as act as agents for out of jurisdiction lawyers.
Gordon S. Campbell serves as counsel throughout Canada on Supreme Court of Canada leave to appeal applications and appeals. He will co-counsel or act as agent for lawyers from outside the NCR dealing with the SCC. He previously served with the Constitutional Law Division of the Attorney General of Ontario and the Department of Justice Canada.