How to Apply for Leave to Appeal to the Supreme Court of Canada: Top 5 Tips for a Winning Public Importance Pitch

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.

Top 3 Reasons You Should Appeal that Court Case You Lost. And Top 3 Reasons You Shouldn't Appeal.

So much time, money and especially emotional energy go into any kind of court case, that it's natural to have a sense of injustice, being wronged, and wanting to prove the injustice to a higher authority when you lose. Civil business litigation, family cases, criminal trials, small claims, they all have winners and losers.

Most judgments can be appealed up to at least one higher court. Sometimes you've got two or even three levels of appeal available. But should you?

Top 3 Reasons You Should Appeal

1. There was a Very Clear Error of Law in the Trial Judgment

All judges and hearing officers are human. And humans make mistakes. If judges were perfect, there would be no need for an appeal infrastructure as a safety valve for decision makers having an off day. 

Starting out my legal career, I used to imagine that you had to get very, very creative to dream up viable grounds of appeal, because most trial judgments would be solidly reasoned. I couldn't have been more wrong.

Sometimes the facts and law really are against a party, but the decision maker fails to adequately explain how she got to her decision. At other times, the decision fundamentally miscomprehends the law or facts, so that you’re effectively into miscarriage of justice territory. You don’t need to be an unjustly imprisoned lifer to have a miscarriage of justice. 

How often such errors are made is a matter of conjecture, since practically speaking many people won’t bother appealing after a long trial process has taken its toll. But I can tell you from statistics from the Court of Appeal for Ontario and the Tax Court of Canada that approximately one in four civil appeals succeeds in some way, and about one in three criminal appeals finds some success. Those really aren’t bad odds if a lot is at stake, and can probably be improved upon with an experienced appellate lawyer since a significant number of appeals are advanced by the self-represented. 

2. An Appeal is Way Cheaper than Paying the Judgment

Its unfortunate that in our society a lot of things come down to money, but that's just the way it is. The reality is that an appeal that will cost you $25,000 in fees against a $3 million judgment is far more justifiable than an appeal that will cost you that same $25,000 in fees as compared to a $40,000 judgment against you.

I have found that litigants often fall into the age old trap of "throwing good money after bad." That's because they've spent a lot of money on trial litigation, perhaps fighting over something that wasn't worth all that money to start with, and then feel compelled to keep spending money on a lost cause on appeal that still isn't really worth it. 

The appeals being justified because they cost a fraction of judgment costs theory also applies to court costs awarded at trial. Even if you perhaps should have lost, but then have $200,000 of the other party's legal fees awarded against you on top of that, you might need to appeal just to fight the costs award. Sometimes by merely filing the appeal, you may gain enough leverage to negotiate a much lower level of costs with the opposing party, or even to have them abandon the costs in exchange for you not further fighting the judgment. 

Once I went before the Ontario Court of Appeal to overturn an unjustified family court contempt finding that should have never been made against my client. When I was contemplating taking on the case, I initially wondered whether it was worth it for my client (and me) to go to the highest court in Ontario to fight what was somewhat of a symbolic order (because it's very rare for anyone to go to jail over a contempt finding). But when I learned there had also been a $20,000 costs award against my client out of the contempt motion, I became convinced of the merits of the appeal. We wound up successfully overturning the contempt judgment, and wiping out the costs award, thereby mostly paying for the cost of the appeal. 

3. Your Were Fighting for Something Priceless at Trial

Of course there are some trial issues that aren't quantifiable in monetary terms. Issues that if you lose, are worth a continued fight, regardless of the cost. Your freedom and your children may be the two most obvious categories. 

However, courts hate frivolous appeals. You need an arguable case. An experienced appeals lawyer may be able to come up with at least arguable grounds for you, even if winning that argument is an uphill battle. You absolutely can't base an appeal solely on not liking the trial level court or tribunal result. 

And an appeal isn't a new trial. It's tough to introduce fresh evidence at an appeal - you'll usually need to bring a motion. An appeal isn't just another kick at the can.

So if you're truly fighting over something priceless, you're better off investing resources at trial than on appeal. I'm often approached by litigants who were self-represented at trial, got hammered (perhaps quite unjustly), and now are thinking of hiring me to "fix" the situation. Sometimes I'm able to do that, but you'll never have as good of a shot at winning on an appeal as you did at trial. Often the best result from an appeal is another trial 

Top 3 Reasons You Shouldn't Appeal

1. Finality

There may be a certain emotional peace to a case finally being over, even if you lost. Appealing will just drag things outs. 

2. The Trial Result Really Wasn't That Bad

While you might be outraged about a trial result, on further examination sometimes it really isn't all that bad. It may be a criminal trial where you were convicted, but you weren't sentenced to jail. It could be a family trial where you didn't secure sole custody of your children, but you also didn't lose custody, and will wind up with them 60% of the time, plus you did get spousal support in your favour. Or perhaps it was business litigation where you and your former business partner were suing each other, and the court found that neither of you had proved your claims. 

You'll have to carefully assess how "bad" is a bad that you can't live with coming out of a trial court; that will be a very personal assessment. For instance, for one person who has a high level security clearance, the criminal conviction without jail might lead to a permanent loss of employment and career, whereas for another who is self-employed it might just not really matter much.

You must especially guard against your appeal against a judgment involving partial success triggering a cross-appeal by your opponent, thereby potentially challenging even that partial success. 

3. You Can't Really Afford It

The cost of an appeal is not just in the appeal, but also in paying the fees involved in a court process that might continue after the appeal. If you win the appeal, your opponent could seek to appeal the appeal. If you win the appeal, the case might be sent back for a new trial leading to further expense. Losing the appeal may mean paying the other side's legal costs. 

Often the best strategy for figuring out whether you should or shouldn't appeal may even be to make that determination on a preliminary basis early on in the trial phase of your case. Then you won't be rushed in later making a final decision on an appeal. Yes, you'll have to assess the judgment you received, but at least the appeal pros and cons will already have been considered.