Guide

This guide will provide information and instructions on what is expected of you if you have been named as a respondent.
Remember that this guide is meant to give you helpful information, not legal advice
The words that are underlined and in quotation marks are defined in the Glossary of Terms.

  1. What is an application for leave to appeal?
  2. Who decides an application for leave to appeal?
  3. How many applications for leave to appeal are granted?
  4. Can I go to the Supreme Court of Canada without a lawyer?
  5. Is the judgment being appealed still in effect after the applicant has filed an application for leave to appeal?
  6. Is there a form I can use for a response?
  7. What are the basic steps?
  8. What is the procedure for filing documents?
  9. What is the procedure for service of documents?
  10. What happens if I miss a deadline for filing and service?
  11. Can I request to have the documents that I have filed sent back to me if my application for leave to appeal case is dismissed?

1. What is an application for leave to appeal?

In order to appeal a decision of a court of appeal in a civil case, and this is also true in most criminal cases to the Supreme Court of Canada, the person wishing to appeal (the "applicant") must ask the Supreme Court of Canada for leave (permission) to do so.

This means that the applicant must successfully apply to the Supreme Court of Canada for leave to appeal before the appeal itself can be heard. An application for leave to appeal is a document by which the applicant requests leave. It must be "filed" with the Registrar and "served" on all other parties.


2. Who decides an application for leave to appeal?

Applications for leave to appeal are usually decided by the full Court.


3. How many applications for leave to appeal are granted?

As many as 600 applications for leave to appeal are filed each year and the Supreme Court of Canada grants only approximately 80 of them each year.


4. Can I go to the Supreme Court of Canada without a "lawyer"?

Yes. You have the right to represent yourself in the Supreme Court of Canada. Whether you hire a lawyer is a personal decision.  In making this decision, you may want to consider how important the outcome of the case is to you.

Rule 15(3), of the Rules of the Supreme Court of Canada states that you cannot represent another party, including a corporation, unless you are a lawyer or if:

  • you were permitted to do so in any lower court, or,
  • you are permitted to do so by a judge of the Supreme Court of Canada.  To obtain permission from a judge of the Supreme Court of Canada, you must file a motion with the Registrar.

Although you may represent yourself in the Supreme Court of Canada, it would be a good idea to get a lawyer, as the procedure is complicated. A lawyer has training and experience, and knows both the procedures and the legal principles that will be relevant to your case. Even if you do represent yourself, you should talk to a lawyer about your case.


5. Is the judgment being appealed still in effect after the applicant has filed an application for leave to appeal?

In most cases, the judgment the applicant is appealing remains in effect even after the applicant has filed an application for leave to appeal. However, this is not the case if a stay is ordered. Section 65.1 of the Supreme Court Act allows the applicant to apply for a "stay" of the judgment until the application for leave to appeal is decided. An application for a stay must be made to the court of appeal. If you have any questions about this, you should consult a lawyer.


6. Is there a form I can use for a response?

Yes. We encourage you to use the response form. You may either write or type on the designated lines. If you write the information by hand, please write clearly and legibly.  If you use the forms, you do not need to worry about whether you have complied with the Rules of the Supreme Court of Canada or the Guidelines for Preparing Documents to be filed with the Supreme Court of Canada (Print and Electronic).

OR

You may choose to put together your own application for leave to appeal. If you choose this option, you should refer to the following documents:

  1. Rules of the Supreme Court of Canada and Forms to the Rules
  2. Guidelines for Preparing Documents to be filed with the Supreme Court of Canada (Print and Electronic)

7. What are the basic steps?

a. Filing of the application for leave to appeal

The applicant must file the original and five (5) copies of the application for leave to appeal and all supporting material with the Registrar of the Supreme Court of Canada within 60 days of the date of the court of appeal's judgment. The 60 days are counted from

  • the date the judgment was pronounced orally in the court of appeal or,
  • if the judgment was not pronounced orally, the date of the written judgment.

The month of July is not counted in calculating this deadline.

If the applicant miss the deadline for filing a document, you must file and serve a “motion” for an extension of time together with an “affidavit” explaining the reasons for the delay. The motion for an extension of time will be considered together with your leave application.

b. Service of the application for leave to appeal

The applicant must serve you with a copy of the application for leave to appeal and all supporting material within 60 days of the date of the court of appeal's judgment.

c. A Supreme Court file will be opened . . .

Before a file number is assigned, the applicant must file and serve the original and five (5) copies of the application for leave to appeal.

The Registry will advise you in writing of the file number. You can use that file number to search the Court docket on SCC Case Information.

d. Filing and service of your response

If you are named as a "respondent", you may "file" a response (an original and five (5) copies) and "serve" it on all other parties within 30 days after the day on which a file number is assigned or, if a file number has already been assigned, within 30 days of being served with the application for leave to appeal. You will receive a copy of the letter to the applicant confirming the file number as soon as it is assigned. The memorandum of argument of your response must not exceed ten (10) pages. A response may be prepared in the form of correspondence of no longer than two pages.

The month of July and the holiday recess (from December 21 to January 7) are not counted in calculating the deadline for filing and service of your response.

e. Filing and service of the reply

The applicant is permitted to file a reply (an original and five (5) copies) to your response and serve it on all other parties within 10 days of being served with your response. A reply may be prepared in the form of correspondence of no longer than two pages.

The month of July and the holiday recess (from December 21 to January 7) are not counted in calculating the deadline for filing and service of the reply.

f. Submission of the application for leave to appeal to the Court for decision

At the expiry of the deadline for filing the reply, the application for leave to appeal, together with the response and reply, will be submitted (sent) by the Registrar to the Court for consideration.

No one may file and serve additional material once the application for leave to appeal has been submitted unless permission is given by the Registrar (Rule 32 of the Rules of the Supreme Court of Canada).

g. Do I have to appear in Court?

The whole process is done in writing only. You do not have to appear at the Court to argue against the application for leave to appeal.  Unless in very rare cases however, the Court may ask that an oral hearing be held.  If such an order is made, you will be given advance notice. 

h. The Court's decision

Decisions are rendered in writing. You can generally expect the decision in your case to be released between one and three months after the application for leave to appeal was submitted (sent) to the Court. You will receive a telephone call from the Registry a few days before the decision to advise you of the date your judgment will be rendered. You will not receive a second telephone call from the Registry to advise you of the content of the decision. If you wish to be informed of the Court's decision on the day of the judgment, you may contact the Registry by telephone at 1-844-365-9662, after the judgment is released. Decisions are usually available on SCC Case Information on the day they are rendered.

You can subscribe to Lexum's mailing list to receive notice of the release of judgments in appeals and in applications for leave to appeal. On a regular basis, if at least one document has been posted, you will receive an email message with a list of links to our documents. In addition, our judgments are also available on our Twitter accounts, in English (@SCC_eng) or in French (@CSC_fra).

It will not be necessary for you to come to the Registry to get your judgment. A copy will be sent to you by mail.

The Court does not issue reasons for its decisions to allow or dismiss applications for leave to appeal.

If the application is... Then...
granted
  • this does not mean that the judgment of the Court of Appeal is reversed.  It only means that you have permission to argue your appeal before the Supreme Court of Canada, and
  • the Registry will advise you of the procedure to be followed.
dismissed

the judgment on the application for leave to appeal is final:

  • according to Rule 74, an application for leave to appeal will not be reheard, and
  • according to Rule 73, an application for leave to appeal will not be reconsidered unless there are exceedingly rare circumstances in the case that warrant consideration.

i. Costs

You should be aware that in addition to filing fees paid to the Registrar, you may be ordered to pay costs claimed by the applicant if the Court grants the application for leave to appeal.

Costs for applications for leave to appeal range from $800 to over $2000.


8. What is the procedure for "filing" documents ?

a. What do I have to file?

All the required numbers of copies.

b. Where do I file?

You may file documents at the following address:
Supreme Court of Canada
Attention: Registry Branch, Room 156
301 Wellington Street
Ottawa, Ontario
K1A 0J1

c. When can I file them?

  • The Registry is open between 8:00 a.m. and 5:00 p.m. EST, Monday to Friday, except holidays.
  • Your material is considered to be filed on the date it is received in the Registry, not on the date it is mailed by you.

d. How do I file them?

  • You may use a courier or registered or regular mail, or you may bring your documents to the Registry in person.
  • You may not file an application for leave to appeal by fax or email (electronic mail).
  • You may file your response by fax or email.

e. Do I have to pay to file a document?

  • The Court will charge a fee of $75 to file a "motion" that is not filed with your response.
  • Your cheque or money order must be made payable to the Receiver General for Canada.

9. What is the procedure for "service" of documents?

a. Whom do I have to serve?

  • Each "counsel" or "agent" of all other parties.
  • If a party is not represented by counsel, the party him or herself.

b. What do I have to serve?

  • All documents filed with the Supreme Court of Canada.  Letters sent to the Court do not need to be served, but you must always send copies of them to the other parties by regular mail or email.

c. How do I serve them?

  • You may serve any document by personal service (this means in person).  You must file with the Registrar your original document endorsed (in other words signed) on the back cover by the party being served.
  • You may serve any document by leaving a copy with the party's counsel or agent or with an employee in the office of the counsel or agent.  You must file with the Registrar an affidavit of service.
  • You may serve any document by ordinary mail. You must file with the Registrar an affidavit of service.
  • You may serve any document by registered, certified mail or courier, by fax, or by email (electronic mail). You must file with the Registrar
    • If by ordinary mail, the post office receipt, a receipt card bearing the signature of the person served or a copy of the tracking results of the courier service that indicates the status of the delivery of the document;
    • If by fax, the fax cover page and transmission slip that confirms the date and time of transmission; or
    • If by email, the copy of the email and a copy of either the email receipt or the confirmation by the party served that service was effected electronically. 

d. When can I serve them?

Any weekday other than a holiday.


10. What happens if I miss a deadline for filing and service?

If you miss a deadline, you must file and serve

  • a “motion” for an extension of time and
  • an “affidavit” explaining the reasons for the delay.

Forms for a motion for extension of time and an affidavit in support are part of the Guide.


11. Can I request to have the documents that I have filed sent back to me if my application for leave to appeal case is dismissed?

The Court keeps one copy of the filed material on the case file. Any additional copies will be destroyed after the judgment is rendered in accordance with the Court’s practice and no copies will be returned.