Guide to the 2017 Amendments to the Rules of the Supreme Court of Canada

In Force On January 1, 2017
(SOR/2016-271)

Proportionality Rule

Rule 4(2) 
In applying the Rules, the Court, a judge or the Registrar must make orders and give directions that are proportionate to the complexity of the proceeding and the importance of the issues in dispute.

Registrar to Keep Records and Official Version

Rule 10(1)
The Registrar must keep all records necessary for documenting the proceedings of the Court.

Rule 10(3)
The official version of a document may be either print or electronic:

• If only one version of a document is filed, whether printed or electronic, that version will be the official version.
• If both printed and electronic versions are filed, the printed version will be the official version unless the Registrar declares otherwise.

Serving Electronically

Rule 20(1)
Any document can be served by attaching it to an e-mail, size permitting.

• One exception: 
• originating documents or documents filed in support (i.e., notice of appeal or application for leave to appeal) cannot be served by e-mail.

Rule 20(2)
A party served with an electronic version of a document that is required to be bound (i.e. a factum) may also request a printed version. That printed version must be sent no later than one week after receipt of the request. (As service is not required, parties can arrange this between themselves.)

Certificates of Counsel

Rule 23
Counsel are required to file two new forms to alert the Court and the media to sealed or confidential information, publication bans or restrictions on public access.   

Form 23A (applies to the file)

• Must be filed by both the applicant and the respondent on an application for leave to appeal or by both the appellant and the respondent on an appeal as of right. 
• Must be filed with the originating documents but must be updated if the information changes (subrules 23(5) and (6)). 
• Now forces the parties to tell us if the full names of individuals named in the style of cause can be published.
• Must be accompanied by a copy of any applicable order and set out the citation of any applicable legislative provision or an explanation of the restriction (subrule 23(2)).

Form 23B (applies to the document being filed)

• Gives information about the documents filed (subrule 23(2).
• Must be filed only if:
  • a sealing or confidentiality order from a lower court or from this Court is in effect in the file;
  • a ban on the publication of evidence or the names or identity of a party or witness under an order is in effect in the file or under legislation;
  • there is information in the file that is classified as confidential under legislation; or
  • there is a restriction on public access to information in the file in a lower court.

The information provided in Forms 23A and 23B will be public unless filed in a sealed envelope.

The Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada (Print and Electronic) provide further instructions.

Form 23C replaces former Form 23B, which served to certify that it might be inappropriate for a judge to take part in the adjudication of a case (subrule 23(4)).

Counsel must immediately file revised forms if any of the information changes (subrule 23(6)). 

Applications for Leave to Appeal

Rule 25(1)(a)
The notice of application is changing slightly:  Rule and Form 25 now provide that a notice of application for leave to appeal must cite the legislative provision that authorizes the application for leave to appeal.

Rule 25(1)(c)(ii)
For an appeal requiring leave to appeal, constitutional issues will be identified and formulated by the parties in the application for leave to appeal. See also the New Constitutional Process below.

Rule 32(2)
Parties are no longer permitted to file documents after a leave application has been submitted to the Court unless the Registrar otherwise directs. 

Appeals (Various Amendments)

New Constitutional Process

Rules 25 and 33
Instead of bringing a motion to state a constitutional question after leave is granted, the parties will identify and give notice of constitutional issues by this new procedure: 

• Appeals by leave:  Constitutional issues are identified and formulated in the application for leave to appeal (subpara. 25(1)(c)(ii)).
• Appeals as of right:  The appellant or the respondent gives notice by filing Form 33B, Notice of Constitutional Question.
• Form 33B will be served on Attorneys General and filed either:
  • by the appellant as a schedule to the Notice of Appeal in an appeal as of right and if directed by the Court in the judgment granting leave in an appeal by leave; or
  • by the respondent 30 days after the notice of appeal is filed in an appeal as of right or if directed by the Court in the judgment granting leave 30 days after the leave judgment (subrule 33(2)).
• Form 33B has been amended to reflect that it is the parties (and not an order of the Court) that assert that the appeal raises a constitutional issue.

Number of Printed Copies

Rules 35 and 36

Fewer printed copies are required for most appeal documents.

Factum: The original and 23 copies of the printed version of the factum (no change).

Record: 

Part I (appellant) – 20 copies (no change). 

Part II (appellant) – 2 copies (reduced from 20)

Parts III, IV and V (appellant) – 2 copies (reduced from 11).

Parts I to V (respondent) – 2 copies (reduced from 11). 

Book of Authorities:  The parties (including interveners) must file two copies (reduced from 11) of the printed book of authorities for authorities that are not available electronically.

See the Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada (Print and Electronic) for specific requirements. 

New Filing Deadlines

Rule 35(1)
The deadline for filing an appellant’s factum is reduced from 12 to 8 weeks. This new deadline runs from the filing of the notice of appeal, in all cases.

Rule 37
The deadline for filing an intervener’s factum is reduced from 8 to 6 weeks. 

An attorney general who intends to participate in an appeal which raises a constitutional issue has 16 instead of 20 weeks to file their intervener’s factum.

Factum and Book of Authorities

Rule 42(2)(f)
Part VI of the factum must include a table listing alphabetically the authorities relied on, including the relevant provisions of the legislative enactments, setting out the paragraph numbers where the authority is cited and, if available, hyperlinks to those authorities and, in the case of legislative enactments, hyperlinks to the provisions only.

Rule 44(1)
A book of authorities is only needed for those authorities that are not available electronically.

Record

Rules 38 and 39

The parts of a record have been reconfigured slightly. 

Part I of the appellant’s record in a criminal matter will include (1) the complete charge to the jury, if necessary to raise the question for the decision of the Court and (2) any Information or Indictment.

Parties have the option to file transcripts as separate documents marked as Part V (appellant) or Part IV (respondent).

Rule 38.1
New Rule 38.1 the appellant has to option to file the electronic copy of the record filed with the court appealed from, if that record consists of 10 or more volumes, to replace Parts II, III and IV of the appellant’s record.  If the appellant files the lower court record, the respondent will not have to file a record. 

Oral Argument 

Rule 71(5.1)
In an appeal as of right, the time allotted for oral argument may be reduced to 30 minutes. Parties will be advised by e-mail approximately one month in advance of the hearing.

Rule 71(5.2)
Attorneys general will no longer have an automatic 10 minutes of oral argument on constitutional issues. (The time allotted for oral argument would be determined either in an order with all other interveners or if there are none, in a separate order.)

Orders and Judgments

Rule 78(3)
The Registrar’s decision to refuse to accept a document under subrule 8(2) or 73(4) is not an order.

Rule 80
Unless the Court otherwise orders:

• an oral judgment takes effect from the date on which it is rendered in court, whether or not reasons are to follow; and
• a judgment taken under reserve takes effect from the date on which it is deposited with the Registrar.

Taxations

Rule 84(1)

The deadline for filing an objection to a taxation runs from the date that the certificate of taxation bears.

Tariffs – Schedule B 

Part 1 – Counsel’s fees – Increased to $75 for a notice of appeal to match the filing fee.

Part 2 – Disbursements – Under item 5, disbursements must be itemized and detailed.

Forms

Various forms are affected by the amendments, and all of these have been amended accordingly.

Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada (Print and Electronic)

Several changes have been made to the Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada (Print and Electronic).  It is important to consult the new version of the Guidelines for changes to the technical requirements. 

Filing of electronic appeal and application for leave to appeal documents – Electronic and printed versions must now be filed by the deadline set out in the Rules, even if they are filed separately.

Footnotes in a factum – The font must be 12-point and if the footnote contains an explanation or a comment, then it must be one and one half lines apart instead of single spaced.

Transition

The Rules Amending the Rules of the Supreme Court of Canada (SOR/2016-271) came into force on January 1, 2017.  The Guidelines for Preparing Documents to be filed with the Supreme Court of Canada (Print and Electronic) have been updated to reflect these amendments.

The amendments apply to all cases as of that date. Please note the following information as you prepare for the transition to the new rules. 

If complying with any new requirement would cause delay, please contact François Desrosiers, Case Analyst, at 613-992-3202.