Filing an Application for Leave to Appeal
Applications for Leave to Appeal - General
Information and Instructions
How do I appeal to the Supreme Court of Canada?
In all civil cases, and in most criminal cases, in order to appeal a decision
of a court of appeal to the Supreme Court of Canada, you must get permission
(or leave) from the Supreme Court. This means that you must successfully apply
for leave to appeal to the Supreme Court of Canada before the appeal itself
can be heard.
How does the Supreme Court decide to grant leave?
The Supreme Court Act states that an application for leave may be granted
when the Supreme Court finds that the case raises an issue of public importance,
and is therefore a case that ought to be decided by the Supreme Court. This
means that the case must raise an issue that goes beyond the immediate interest
of the parties to the case. As many as 600 applications for leave are filed
each year but the Court grants approximately 70 leave applications per year.
Applications for leave are usually decided by a panel of three judges of the
Court.
Do I need a lawyer?
Although you may represent yourself at the Supreme Court of Canada, we recommend
that you have a lawyer, as the procedures are complex. You may represent only
yourself and cannot act for another person, if you are not a lawyer. If more
than one unrepresented person wants leave to appeal the court of appeal judgment,
one application may be filed, but the application must be signed by all individuals.
A corporation must be represented by a lawyer before the Supreme Court unless
the corporation was permitted to be represented by a person other than a lawyer
in the court appealed from, and it chooses to continue to be represented by
that person in the Supreme Court; or on motion, a judge grants the corporation
leave to be represented by a person other than a lawyer in accordance with the
applicable federal or provincial legislative enactment.
When can I apply for leave?
In criminal cases, the accused can apply for leave from a judgment of the
Court of Appeal which either allows an appeal by the Crown or dismisses an appeal
by the accused from the judgment at trial. In civil cases, an application for
leave can be made from the judgment of the Court of Appeal. In some cases, leave
to appeal can be sought from the judgment of a lower court if no further appeal
lies to a higher court in the province.
Is leave to appeal necessary in all cases?
In certain criminal cases, you may have the right to appeal without first
obtaining leave from the Supreme Court. For example, in an appeal relating to
an indictable offence, you may appeal as of right if one of the judges of the
court of appeal dissented on a question of law or if the court of appeal decided
that a verdict of acquittal was wrong and entered a conviction. Your notice
of appeal must be served and filed within 30 days of the court of appeal judgment,
together with a copy of the reasons of the Court of Appeal. If you think you
have an appeal as of right, you should contact the lawyer who represented you
in the Court of Appeal.
How do I apply for leave?
You must file a complete application for leave that has been assembled in
the manner required by Rule 25. Your material must be clear and legible, preferably
typed, with a table of contents and numbered pages. The basic requirements for
a leave application are a notice of application for leave to appeal in form
25A, followed by a notice of bilingual name in form 14 if applicable, copies
of the formal order and reasons for judgment of the trial court, as well as
the formal order and reasons of the Court of Appeal, and your memorandum of
argument. You must also include in your application a certificate (see form
25B) stating whether or not there is a sealing order or ban on the publication
in effect in your case.
The memorandum of argument is an essential part of your application. It can
be no longer than 20 pages, and is broken down into parts:
- Part I: a concise statement of facts,
- Part II: a concise statement of the questions in issue,
- Part III: a concise statement of argument,
- Part IV: submissions, if any, not exceeding one page,
in support of the order sought concerning costs,
- Part V: the order or orders sought with respect to
costs (which you must sign)
You may also include, as Part VI, a table of the authorities that you expect
to refer to, arranged alphabetically, together with a reference to the paragraph
number in the argument where they are cited in Part III, and as Part VII, those
provision of any statute, regulation, rule, ordinance or by-law relied on. These
parts are not included in the 20 page limit.
What happens if I do not file all the required documents?
Until you have filed all essential material, your application for leave will
be classified as incomplete and cannot be submitted to a panel of the Court
for decision. If many of the required documents are missing, or if the application
is not assembled properly, the Registrar may return the material. This may cause
you to miss the deadline for filing.
How many copies?
You must file with the Court the original and five copies of your application
for leave to appeal and all supporting material.
Do I have to pay a fee?
A fee of $75 is payable when you file an application for leave to appeal.
Your cheque or money order must be made payable to the "Receiver General
for Canada".
Please note that you must pay a fee of $75 for filing any motion that is not
included in your application for leave book.
Do I have to appear in court?
In civil matters and most criminal cases, the application for leave to appeal
is made in writing only. You do not have to appear at the Court to argue your
leave application. 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.
On the request of an applicant, the Court will order an oral hearing to decide
an application for leave from a decision where the Court of Appeal has set aside
an acquittal from an indictable offence if the Court ordered a new trial if
there is no right of appeal on a question of law on which a judge of the Court
of Appeal dissents.
What are the deadlines?
The application for leave must be served on the respondent(s) and filed with
the Court within 60 days of the date of the judgment appealed from. Time is
counted from the date that the judgment was pronounced orally in court, or,
if reserved, the date of the written judgment. Please note that the month of
July is not counted in calculating this deadline. If you miss this deadline,
you must bring a motion for an extension of time together with a affidavit explaining
the reasons for delay. Your motion for an extension of time will be considered
together with your leave application.
Do I have to give copies to the other parties?
You must serve all respondents with your application for leave to appeal and
all supporting material. The service may be made in person, by registered or
certified mail or by courier. As well, you must provide the Court with proof
of service. The methods of service and the procedures for proof of service are
set out in Rule 20. It is not necessary to file a copy of the application with
the Supreme Court before you serve the respondent.
You must also send by mail of fax a copy of your notice of application for
leave to all other parties and interveners in the court appealed from not named
in the style of cause in accordance with Rule 26(2).
When is a court file opened?
A court file will be opened once your complete application for leave is received.
The Registry will advise you in writing of the file number.
What happens once the application is served and filed?
There are two more steps before the application is sent by the Registrar to
the judges of the Court for decision:
Response:
The respondent may serve and file a memorandum of no longer than 20 pages,
in response to your application for leave within 30 days after the service
of the application.
Your reply:
You may serve and file an original and five copies of a reply to the response,
not exceeding 5 pages, within 10 days of the service of the response. The
filing of a reply constitutes the last step in the leave to appeal process.
At the expiry of the deadline for filing the reply, all material relating
to the application is submitted to the Court. Therefore, you should be aware
that if you miss the deadline, the Court may render a decision without having
received your reply.
You should also be aware that you cannot file any further documents after the
application for leave has been sent by the Registrar to the judges, unless you
make a motion to the Registrar and that motion is granted.
Does the judgment I want to appeal remain in effect even if I want to appeal
it?
In most cases, the judgment that you are appealing would remain in effect even
if you file an application for leave to appeal. This is not always the case,
and we would urge anyone with questions about this to get legal advice. Section
65.1 of the Supreme Court Act allows an applicant to apply for a stay
of the judgment until the application for leave is decided. An application for
a stay may be made to the court that issued the judgment under appeal.
When will the leave application be decided?
You can expect a decision, generally, between one and three months later after
your application for leave has been sent to the judges of the Court. You will
receive a telephone call from the Registry a few days before the decision to
advise you of the date of pronouncement of judgment. You will not receive a
second telephone call from the Registry to advise you of the decision, and therefore,
if you wish to be informed of the Court's decision on the day of judgment, please
contact the Registry by telephone at (613) 996-8666. (Link
to Case info)
If the application is 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. If this is the case, the Registry will
advise you of the procedures to be followed.
If the application is dismissed, a copy of the judgment will be sent to you
by mail. The Court does not usually issue reasons for its decisions to allow
or dismiss an application for leave.
Is there any appeal from a decision denying leave?
A judgment on a leave application is final in all but the most exceptional
cases. Rule 74 of the Rules of the Supreme Court of Canada says that
there is no rehearing on a leave application and Rule 73 says that there shall
be no reconsideration of a leave application unless there are exceedingly rare
circumstances in the case that warrant consideration. An example would be where
there has been a change in the law made at the same time that the application
for leave was made. If your leave application is dismissed, and one of the "exceedingly
rare" circumstances exists in your case, we strongly urge you to seek legal
advice.
Court costs.
You should be aware that you may be ordered to pay the costs claimed by the
other party to the application if the Court dismisses your application for leave
to appeal. With the exception of criminal cases involving indictable offenses,
costs may be awarded in any matter.
For your assistance.
To help you, the following links deal with applications for leave to appeal
to the Supreme Court of Canada:
1. Supreme Court
Act, R.S.C., 1985, c. S-26, ss. 36 to 43;
2. Rules of the
Supreme Court of Canada, Rules 14 to 28, 32, and 47 to 51; Forms 14,
20, 22, 23, 25 A & B, and 47;
3. Section 691 of the Criminal
Code of Canada, R.S.C., 1985, c. C-46;
4. Checklists for
most commonly filed documents
If you need more information.
If you have questions about your leave application or need a sample copy,
please contact the Registry at (613) 996-8666. Although every effort will be
made to assist you by providing information about the procedure to be followed
in a leave application, Supreme Court of Canada staff cannot give any legal
advice. If you are unsure about what legal arguments to make or what supporting
documentation should be filed, other than the documents mentioned above, you
are advised to consult a lawyer.
Where to send your application.
Your application for leave to appeal should be sent by mail or by courier
to the following address:
Supreme Court of Canada
Attention: Registry Branch
301 Wellington Street
Ottawa, Ontario
K1A 0J1
Please ensure you enclose:
( ) Original and five copies of your completed application together
with all supporting documents
( ) $75 filing fee
( ) Proof of service
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