Q: I have a case that’s going to our provincial court of appeals. If I lose, I want to go to the Supreme Court. My lawyer says going there is unlikely. Why is that?
A: The Supreme Court of Canada has a rich history in Canadian law. It is the top court in Canada and the last stop for appeals, but it was not always so.
In spite of becoming a nation in 1867, Canada had no court that made rulings binding across the land. Our Supreme Court was not created until a bill was introduced in Parliament in 1869, and then it was not formed until 1875.
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Even after it was formed, a right of appeal to the British Privy Council existed, and Britain continued to directly influence all matters of law within Canada. This right of appeal “across the pond” continued until 1933 for criminal cases and 1949 for all other cases, when the Canadian Parliament passed a bill to make our Supreme Court truly supreme with respect to Canadian legal affairs.
So, you may ask, why can’t average citizens take their cases to the highest court in the land? There are several reasons.
One is that the court could never keep up with the demand if every dissatisfied litigant had such access. Another is that the Supreme Court was always intended to be a truly “national” court. Over the years, this has been interpreted as meaning that a case has to have national significance that goes beyond provincial boundaries to be considered by the Supreme Court.
If the effect is purely local, or if the subject is such that only the parties to the lawsuit themselves would be interested, you are unlikely to get leave to appeal.
One needs “leave” or permission from the Supreme Court to appeal to it, although there are exceptions. For example, some criminal cases allow a Supreme Court appeal as a right. However, if your case is a civil one, you will need leave to appeal.
The court receives approximately 600 leave applications a year but only hears 75 to 80 appeals. As a result, your lawyer is statistically correct: few cases that the Supreme Court considers actually receive a hearing.
If a hearing is denied, the decision of the provincial court of appeal stands. Leave to appeal applications are done in writing and the court does not have to issue reasons for granting or denying leave. The decision is also written, and most leave decisions are made within 90 days of applying. As well, when leave is granted, the court usually defines the issues it wants to hear.
The court has nine judges, and at least five must sit on an appeal. It is always an odd number.
Decisions on the weighty matters of law are usually “reserved,” meaning that after argument is heard the judges consider the case carefully and issue a written ruling with detailed reasons for the judgment.
With respect to your own case, it’s impossible without more information to give you an opinion on what the chances are for getting to the Supreme Court.
I can tell you that it’s rare for most lawyers to go there. I’ve practiced for 26 years and have gone once.
Whether you receive leave to launch an appeal to the Supreme Court depends on the reasons for the appeal, whether it looks like you have a good, arguable case to present and whether the issue raised is of public or national importance.
For more information, visit www.scc-csc.gc.ca/home-accueil/index-eng.asp.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
