Guide

1. What is an application for leave to appeal?

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

This means that you (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 you request 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.

Even though you have the right to represent yourself, you do not have the right to act for another person.  Therefore, if you are bringing the application for leave to appeal together with other individuals named as applicants, each person must sign the notice of application for leave to appeal.

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 retain 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. Can I ask the Court for legal assistance?

Yes, but only if you are applying for leave to appeal in a criminal case relating to an indictable offence. In such a case, you may ask the Court to appoint a “counsel” to represent you. However, you should know that this request will be submitted to the Court only if you file your own application for leave to appeal and if you satisfy these two important conditions:

1. you have been denied legal aid and
2. you have a lawyer who is willing to represent you if your request for the appointment of counsel is granted.

Procedure:

You must file the following documents (the originals and five (5) copies) with the Registrar of the Court and serve a copy of them on the Crown attorney:

• your application for leave to appeal;
• a motion for the appointment of counsel explaining why you do not have the means to obtain legal assistance;
• a copy of a letter from a lawyer who is willing to represent you if he or she is appointed; and
• a copy of the letter from the legal aid office indicating that legal aid has been refused.

Once you have filed and served all the required documents, the Registrar will submit (send) your application for leave to appeal to the Court together with your motion for the appointment of counsel.

If the Court decides to grant your motion for the appointment of counsel, your new counsel will be permitted to file and serve an amended (revised) application for leave to appeal.

Simplified procedure:

There is also a simplified procedure for obtaining an order assigning counsel which may be used if the Crown consents to your request.  Instead of filing a complete application for leave to appeal and a motion, you can file the following documents (the originals and five (5) copies) with the Registrar of the Court and serve a copy of them on the Crown attorney:

• a notice of application for leave to appeal which is included in the application for leave to appeal form;
• a letter to the Registrar explaining why you do not have the means to obtain legal assistance;
• a copy of a letter from a lawyer who is willing to represent you if he or she is appointed;
• a copy of the letter from the legal aid office indicating that legal aid has been refused; and
• a copy of the consent of the Attorney General who is a party to the proceeding.

If, in the opinion of the Court or the judge, it appears desirable in the interests of justice that you should have legal representation, an order appointing counsel will be issued.  Your counsel will then be permitted to file and serve an application for leave to appeal.

6. When can I apply for leave to appeal?

Criminal cases

You may bring an application for leave to appeal from a judgment of a court of appeal that either

• allowed an appeal by the Crown or
• dismissed your appeal from the judgment at trial.

The situations in which the Supreme Court of Canada has “jurisdiction” to grant leave to appeal in a case involving an indictable offence can be found in section 691 of the Criminal Code. If your case concerns a summary conviction offence or if you wish to appeal a sentence, on the other hand, the Court's jurisdiction is set out in section 40 of the Supreme Court Act.

Civil cases

Under section 40 of the Supreme Court Act, you may bring an application for leave to appeal from a final judgment of a court of appeal in a civil case.

If the judgment in your case was rendered by only one judge of the Court of Appeal, you should contact the Court of Appeal to ask whether anything remains to be done there before you bring your case to the Supreme Court of Canada.

There are some very rare cases in which leave to appeal can be sought from a judgment of a court other than a court of appeal where no further appeal to the Court of Appeal is possible. You should contact the Court of Appeal to ask whether you have a further recourse there before you bring your case to the Supreme Court of Canada.

7. Are there cases in which I might appeal to the Court without first applying for leave to appeal?

Yes, but this is possible only in certain criminal cases. In an appeal relating to an indictable offence, you may appeal as of right (that is, without first applying for leave to appeal) if

• there is a “dissent” by one of the judges of the Court of Appeal on a question of law, or
• you were acquitted at trial but the Court of Appeal then changed the verdict to guilty.

In such a case, your notice of appeal must be filed and served within 30 days of the Court of Appeal's judgment, together with a copy of the Court of Appeal's reasons.

If you think you have an appeal as of right, you should contact a lawyer.

8. Is the judgment I am appealing still in effect after I file an application for leave to appeal?

In most cases, the judgment you are appealing remains in effect even after you have 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 you 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.

9. Is there a form I can use for an application for leave?

Yes. We encourage you to use the application for leave to appeal form (and the reply form for your reply). 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)

10. What are the basic steps?

a. Filing of your application for leave to appeal

You must file the original and five (5) copies of your application for leave to appeal with the Registrar 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 you miss your 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. Your motion for an extension of time will be considered together with your leave application.

You will receive an acknowledgement letter from the Registry which will indicate that your written leave application will be carefully reviewed by Court staff.

b. Service of your application for leave to appeal

You must, within 60 days of the date of the Court of Appeal's judgment, serve a copy of your application for leave to appeal and all supporting material on all parties who were before the Court of Appeal and are named in the style of cause of your application for leave to appeal. If you have chosen in your application for leave to appeal not to name one of the parties who were before the Court of Appeal, you must nevertheless send a copy of your notice of application for leave to appeal to that party.

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

Before a file number is assigned to your case, you must file all the following documents:

• The original and five (5) copies of your application for leave to appeal, which must include
  • a notice of application for leave to appeal;
  • 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); and
  • your memorandum of argument.
• 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;
• Proof of service of your application for leave to appeal.
• Payment of a $75 filing fee to the order of the Receiver General for Canada.

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

d. The other party's response

The other party (“respondent”) 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 is opened following the filing of the application for leave to appeal.  The respondent will be advised of this in writing. 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 23 to January 3) are not counted in calculating the deadline for filing and serving the response.

e. Filing and service of your reply

You are permitted to file a reply (an original and five (5) copies) to the respondent's response and serve it on all other parties within 10 days of receiving the response. The memorandum of argument in your reply must not exceed 5 pages. A reply may be prepared in the form of correspondence of no longer than two pages.

If you miss the deadline for filing your reply, the Court may render a decision without having received your reply.

The month of July and the holiday recess (from December 23 to January 3) are not counted in calculating the deadline for filing and serving your reply.

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

At the expiry of the deadline for filing the reply, your 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 your application for leave to appeal.  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. 

In a criminal case involving an indictable offence, you may ask the Court for an oral hearing pursuant to Section 43 (1.2) of the Act if:

• The Court of Appeal set aside an acquittal and ordered a new trial, and
• You are not otherwise appealing as of right on a question of law on which a judge of the Court of Appeal dissented.  

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 your 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 our 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 your application for leave to appeal is dismissed and you think one of the "exceedingly rare" circumstances exists in your case, we strongly urge you to seek legal advice.

Example of a rare circumstance:

A change was made to the law at the same time as you were making your application for leave to appeal.

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 respondent if the Court dismisses your application for leave to appeal.

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

Exception:

Costs are generally not ordered in criminal cases.

11. 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 them?

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 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 reply by fax or email.

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

• The Court will charge a fee of $75 to file your application for leave to appeal and a fee of $75 to file any “motion” that is not filed with your application for leave to appeal.
• Your cheque or money order must be made payable to the Receiver General for Canada.

12. 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.

• You must also send by regular mail or fax, a copy of your notice of application for leave to appeal to any party in the court appealed from who is not named in the style of cause of the application for leave to appeal.

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 your application for leave to appeal and any document filed in support by registered, certified mail, courier or email (electronic mail). You must file with the Registrar
  • an affidavit of service, and
    • if by registered/certified mail or courrier, 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; 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.
• You may not serve your application leave to appeal and any documents filed in support, or any originating motion by ordinary mail or fax.
• You may serve your reply by ordinary mail. You must file with the Registrar an affidavit of service.
• You may serve your reply 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.

13. 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.

14. 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?

No. The Court keeps one copy of the filed material as part of the permanent record. All additional copies are shredded after the judgment is rendered. You are encouraged to keep a copy of any documents you send to the Court.

15. Can I ask the Registry to return documents that I have sent to the Court if a file number has not been assigned?

No. The Court keeps one copy of any correspondence received for a period of two years, after which it is shredded. You are encouraged to keep a copy of any documents you send to the Court.