for Leave to Appeal
An application for leave to appeal to the Supreme Court of Canada must explain why the Court should hear the appeal, and in particular how the appeal raises an issue or issues of public importance.
The Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1), provides that the Court should grant leave to appeal:
where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it.
The Supreme Court of Canada enjoys wide discretion to grant or deny leave to appeal (R. v. Hinse,  4 S.C.R. 597 at ¶ 8). The fact that the court below reached the wrong result, in itself, may not be sufficient to convince the Court to grant leave to appeal.
The following non-exhaustive list of considerations may point towards an issue of public importance:
- the presence of a constitutional issue in the form of a challenge to a statute, a common law rule or a government practice;
- a conflict between courts of appeal of different provinces on issues that should be dealt with uniformly as between provinces;
- a novel point of law; and
- interpretation of an important federal statute or provincial statute that exists in several provinces.
See here for the Honourable Thomas Cromwell’s presentation on leave applications before the Supreme Court of Canada.
Memorandum of Argument and Affidavit
The principal objective of the memorandum of argument should be to elucidate how the appeal raises an issue of public importance.
It is particularly important that the applicant set out, in Part I of the memorandum of argument, a concise overview of the applicant’s position “with respect to issues of public importance that are raised in the application for leave to appeal and a concise statement of facts” (Rule 25(1)(c)(i)).
Where an affidavit is included in support of the application for leave to appeal, it should set out the factual basis for why the applicant claims the appeal raises an issue or issues of public importance. The affiant should not draw a conclusion on that question given that it is the very question to be determined by the Supreme Court on the application for leave to appeal.
The procedural requirements for leave applications are outlined in the Act and the Rules of the Supreme Court of Canada, SOR/2002-156, as amended. In particular, see Rules 25 to 28 and consult with your Ottawa agent for assistance.
The Court does not issue reasons for the disposition of an application for leave to appeal.
Pro Bono Law Ontario
Self-represented litigants may wish to determine whether they qualify for assistance by Pro Bono Law Ontario.