Should I Seek Leave to Appeal to the Supreme Court of Canada? Here Are Your Top 4 Considerations

Many involved in civil, family, criminal or administrative litigation may be pretty worn out by the time they get to the “should I seek to leave to appeal to the Supreme Court of Canada?” question stage. It’s quite true there is a law of diminishing returns, where you stand your best shot at winning before a trial court, a significantly reduced (but still plausible) chance before a provincial appellate court, and then a pretty small chance being permitted to proceed in front of the highest court in the land known as the Supreme Court of Canada, because you don’t have a “right” to go to the SCC, you need “leave” (permission) from the Court. Thus it’s a two-stage process: apply for leave first, then appeal if you get leave.

But what my 25 years of being involved with Supreme Court of Canada cases have taught me is that the Court is unpredictable with respect to which cases it grants leave to appeal on. There are some general trends, like criminal cases probably standing the best chance of getting leave because of the way they engage fundamental liberty issues and often involve Canadian Charter of Rights and Freedoms debates, with family cases probably standing the worst chances of leave likely because the Court wishes to leave it to provincial courts to sort out the largely fact-specific nature of family litigation, with civil and administrative cases landing somewhere in the middle for prospects of successful leave applications.

But if you’ve already got as far as a provincial appellate court at great expense of time and resources, you might be ill-served by not attempting to reach out to the Supreme Court of Canada to see if you can interest it in your case. Although they’ve got a leave grant rate of only about 1 in 10, it’s rare I can say any case has a 0% chance of success because the Court can be full of surprises, and very unpredictable in its results.

For instance, in my SCC case of R. v. Ulybel Enterprises Ltd., 2001 SCC 56 which has now been cited 257 times by other cases, I wasn’t at all feeling the love for a leave to appeal application after we lost in the Newfoundland & Labrador Court of Appeal which overturned a trial judgment concerning forfeiture of a vessel. But I was overruled, we successfully sought leave, and then we won the substantive appeal as well, with the SCC restoring the trial judgment.

Likewise, in my SCC case of R. v. Marshall, [1999] 3 SCR 456, we were perhaps overconfident responding on the appeal as we had won at trial, and won on appeal. But because of what the SCC perceived to be the national public importance of the issues, it granted leave, and then on the SCC appeal overturned both the Nova Scotia Court of Appeal and the Nova Scotia Superior Court’s judgments, with a sort of a “what were you people thinking?” kind of analysis that upended existing law, and has now been cited 370 times by other cases, with its results continuing to strongly reverberate throughout Canadian jurisprudence.

But some cases may be more obvious wins on a leave application than others, like my SCC case of Del Zotto v. Canada, [1999] 1 SCR 2, cited only a modest 48 times by other cases, where we had won before the Federal Court, but then lost 2-1 before the Federal Court of Appeal, setting up a clear controversy of essentially two judges versus two judges on the tax issues, where the SCC both gave us leave, and overturned the Federal Court of Appeal’s split decision, restoring the trial judgment.

Even from this small sample of cases, you can detect some trends like trial overturned by appellate court sets up a controversy that might interest the SCC. 2-1 splits at the provincial appellate court level is also likely a controversy that could be of interest. And earth-shaking constitutional issues, or issues of statutory interpretation setting pitting federal and provincial laws against each other, might engage the SCC.

Here are my top 4 considerations when thinking about whether you should seek leave to appeal to the Supreme Court of Canada.

1. It’s Your Last Kick at the Legal Can

While litigation of any sort can at times seem endless, the buck really does stop at the Supreme Court of Canada. True, some cases could even make the journey up there more than once. But in theory, there’s some finality once the SCC leave stage has been exhausted.

You may owe it to yourself to make sure you’ve done everything reasonably possible within your power to seek every legal recourse to right the wrong you’ve been litigating over. Once you’ve received a negative decision from the highest appellate court in any province or territory, seeking leave to the SCC will usually be open to you as a last legal recourse option.

2. It’s Really Not that Expensive to Seek Leave to Appeal to the SCC Even Using a Lawyer

Litigation costs always amaze me. And I say that as someone long in the business of litigation. The costs - if I can ask you to trust me on this - aren’t driven by lawyers trying to rip off their clients, but unfortunately by the immense amount of lawyer time litigation can burn. The dozens of court appearances prior to trial. The weeks of time at trial. The thousands of pages of appeal records. And if anything, trials are getting longer, not shorter.

But the Supreme Court of Canada, at least at the leave to appeal stage, is different. You’re only permitted a 20-page factum of legal argument, plus an appeal record where you can include selected materials from the courts below, but there are no mandatory requirements to create bloatware that no one in the Court really has any time or inclination to read. Plus it’s a paper process, where there is no live hearing of argument consuming lawyer time.

If you get leave, an SCC appeal itself can indeed consume lots of lawyer time. But it will usually still consume far less time (and money) than any trial under appeal. And maybe even less than a lower appellate court appeal.

We typically just charge a block fixed fee of $15,000 plus HST and disbursements for SCC leave to appeal applications, which includes lots of analysis and drafting time, to give you an idea of real costs. Which is much less than we would need to charge for any trial or even for provincial appellate court appeals.

We usually figure out the cost for SCC substantive appeals if leave is granted after the leave order, based on the anticipated volume of work. The cost may depend in part on the number of intervenors who need to be dealt with, as SCC cases are often of such national importance that Attorneys General from the provincial or federal Crowns or private organizations will seek to “intervene” to give their take on the legal conclusions they believe the Court should arrive at.

3. You Need to Be Within Your 60 Day Time Limit

While getting to a trial might have taken you years, with your case at times treading water for what seemed like an eternity, appeals are all about ticking clocks. The Supreme Court of Canada’s clock runs out in 60 days after the lower court’s appellate judgment is issued. And that’s 60 days from the decision of that lower court - which might have been an oral judgment on the day of hearing from the bench - not 60 days from when written reasons were issued, which might have come much later.

Equally importantly, the 60 days is all you have to serve and filed a complete leave to appeal application, not just a Notice seeking leave. So your entire factum of legal argument, and all the attachments, need to have been completed. Meaning that if you start calling around for lawyers 57 days after judgment, no one is going to be able to do anything for you.

We typically require at least 30 days to pull together a convincing leave to appeal application, and ideally we’ll get close to 60 days. So you really need to find a lawyer and decide on seeking leave within about 7 days after you lose in your court of appeal.

Sometimes we’re contacted by people who lost their appeal 5 years before, who are now thinking it might worth going to the SCC. If you’re a few days late after your 60 days, and have a really, really good reason for being late, an extension of your time to seek leave to appeal could be possible. But as the weeks pass beyond your deadline, your prospects of extending your time to serve and fie become more and more remote.

4. You Need to Sell an Issue of Public Importance, Not Just a Legal Error

Many quite reasonably but incorrectly think that what should have worked (but failed) at the provincial appellate court of selling “legal error” in the trial court is the way to convince the SCC to give leave. They know you can’t appeal pure errors of fact (though total messes that rise to the level of misapprehension of the evidence can sometimes be sold as errors of law). But they fail to understand that the SCC is not just another error reviewing court.

The Supremes are for the most part a court for issues of public importance, usually of national dimensions. Meaning, you need to sell the Court on not just the lower courts all being wrong in law, but that there are publicly and preferably nationally important issues at play in your cases, where the SCC’s pronouncing on those issues will reverberate throughout Canada, solving all sorts of legal problems for other Canadians as well. So tying in what the courts and legislatures of other parts of Canada are doing (or are confused about) on your issue(s) is key to winning leave. If you can’t work out a (national) public importance angle, you’re not going to succeed on a leave application. Thus examining academic writing, foreign legal policy development, and even international treaties could all be helpful in winding up for making that last legal pitch.

Gordon Scott Campbell has appeared on civil, family, criminal and administrative appeals and trials throughout Canada including multiple appearances at the Supreme Court of Canada. He holds degrees in Common Law and Civil Law from the McGill Faculty in law, practices in French and English, and previously served with the Department of Justice Canada and the Constitutional Law Division of the Ministry of the Attorney General of Ontario. Learn more at www.acmlawfirm.ca.