Important information about seeking leave to appeal to the Supreme Court of Canada
- Where can I get help?
- Can I come to the Supreme Court of Canada?
- What is the mandate of the Supreme Court of Canada?
- What is the first step in applying for leave to appeal?
- What are the chances of success in getting an appeal heard?
- How much will this cost?
- What happens after I send my application for leave to appeal to the Court?
- Do you have instructions and forms?
1. Where can I get help?
It is highly recommended that you seek legal advice. This should be your first step. Only a lawyer can give you legal advice. A lawyer is in the best position to let you know if you have a chance of success on an application for leave to appeal and, if you do, to help you frame an argument. Therefore, even if you are self-represented, you should try to get legal advice.
Pro Bono Ontario operates a program that helps in this situation. No matter what province you are in, you are strongly encouraged to apply for help.
2. Can I come to the Supreme Court of Canada?
The Supreme Court of Canada, the highest court in the country, is not like any other court. The Supreme Court chooses which appeals it will hear, and you do not have an automatic right to be heard.
The Supreme Court of Canada appeals are different from other appeals. In a civil matter, the Supreme Court can hear an appeal from a final or other judgment from a court of last resort in a province or the Federal Court of Appeal.
A court of last resort in a province is usually the Court of Appeal. Therefore, you should contact the Court of Appeal to ask whether any further recourse is available there before you bring your case to the Supreme Court of Canada. If you do not, you risk having your application dismissed on the basis that the Court does not have jurisdiction, and you may be ordered to pay the other party's costs.
3. What is the mandate of the Supreme Court of Canada?
Its mandate is to deal with issues of law which are
- of public importance, or
- of such a nature or significance as to a warrant decision by the Court.
It is not enough for you to think the Court of Appeal is wrong to have your case heard by the Supreme Court. Matters that the Court hears generally transcend the interests of the immediate parties and do not turn only on the facts of the case. For example, in many of the cases that come before it, the Court must determine the legal meaning of a provision of a statute, and its decision is likely to have an impact on society as a whole.
4. What is the first step in applying for leave to appeal?
Before an appeal is heard by the Supreme Court of Canada in a civil case, and this is also true in most criminal cases, the person wishing to bring the appeal must ask the Supreme Court of Canada in writing for leave (permission) to do so. The first step, therefore, is to file a complete written application for leave to appeal (leave application) with the Court.
5. What are the chances of success in getting an appeal heard?
Of the approximately 600 leave applications submitted each year, only about 80 are granted. The possibility of succeeding in getting an appeal heard is in general remote. Each application for leave to appeal is considered carefully by the Court. The Court never gives reasons for its decisions. It is important to remember that the Court's role is not to correct errors that may have been made in the courts below.
6. How much will this cost?
The Court will charge you $75 to file your application for leave to appeal and $75 to file any motion that is not filed with your application for leave to appeal.
You should be aware that, if the Court dismisses your application for leave to appeal in a civil case, it may order you to pay, in addition to the filing fees paid to the Registrar, costs claimed by the respondent. Costs are generally not ordered in criminal cases.
Costs for applications for leave to appeal range from $800 to over $2000. You may therefore wish to consult a lawyer before bringing your leave application. Only a lawyer will be able to provide you with an assessment of the merits of your case and your chances for success.
7. What happens after I send my application for leave to appeal to the Court?
You will receive an acknowledgement letter from the Registry which will indicate that your written leave application will be carefully reviewed by Court staff within 30 days. Please do not contact the Registry during this period to enquire about the status of your application.
Once your leave application has been reviewed, you will receive a second letter which will either inform you of the file number assigned to your case OR explain why a file number has not been assigned.
A file number will not be assigned if you do not have a judgment which can be appealed to the Court. This may be because you have a further recourse in the lower courts or because you are in the wrong court. In such a case, your documents will be returned to you. It would therefore be a good idea to contact the Court of Appeal or to consult a lawyer before bringing your leave application.
Also, a file number will not be assigned if you have not filed all the following documents:
- a notice of application for leave to appeal;
- if the judgment you are appealing was rendered more than 60 days ago, a motion for an extension of time and an affidavit explaining the reasons for the delay;
- the Court of Appeal's reasons for judgment and order (if there are no reasons, please indicate this in the table of contents);
- the trial court's reasons for judgment and order (if there are no reasons, please indicate this in the table of contents);
- your memorandum of argument;
- proof of service of your application for leave to appeal; and
- payment of a $75 filing fee to the order of the Receiver General for Canada.
8. Do you have instructions and forms?
We realize that filling out forms and court documents, as well as understanding the Court's Rules, can be complicated. Registry staff cannot tell you whether the information you have provided is correct or complete, or give you legal advice. To make things easier, we encourage you:
- to consult the guide for information on what is expected of you, and for instructions to be followed, if you apply to the Court for leave, and
- to use the forms included in the guide. If you use these forms, you do not need to worry about whether you have complied with the Rules of the Supreme Court of Canada; properly completing them will ensure that you have followed the Rules in their entirety. Complete the forms to the best of your ability. Use your own words.
Remember that Registry staff cannot help you fill out the forms. You are expected to know your case and to put everything together, even if you do not have a lawyer.
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