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FAQ
Changes to the Rules of the Supreme Court of Canada
As a courtesy to clients and friends we have prepared a list of 50 of the most common questions we've received from clients (and of course our answers) — "R." means the rule no. in the Supreme Court Rules and "s." the section no. in the Supreme Court Act.
- When did the new Rules come into force?
June 28, 2002.
- I just got the Court of Appeal Judgment. How long have I got to appeal?
60 days for Leave to Appeal, but only 30 days if Appeal as-of-right. July does not count. (R.25 & 26 & s.58(1)(a))
- The other side will for sure deliberately delay signing and entering the Court of Appeal formal Judgment/Order. Does this extend time for me?
No.
- Are the S.C.C. rules pretty much like the Court of Appeal rules (as to length of factum, what can be attached/appended, authorities, etc)?
No. And they changed significantly (pretty much fully revised) as of June 28, 2002: click http://lois.justice.gc.ca/en/S-26/SOR-83-74/text.html to see the new Rules.
- Can I seek leave to cross-appeal?
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Yes. (R. 29)
- Can I file an affidavit in support of the Application for Leave to Appeal?
Yes. (R. 25(1)(b))
- Is an intervener now permitted under the Rules to apply to intervene in a leave to appeal, and thereby increase chances of leave being granted?
Yes. (R. 56(a)), and it depends on many factors as to whether it helps get leave granted by the Court.
- Who must now be named in the style of cause in proceedings before the Supreme Court?
The style of cause must name the Applicants or Appellants and the Respondents, including in Québec a mis-en-cause, adverse to the Applicants or Appellants. The style of cause must also name as an intervener: i) each person granted leave to intervene pursuant to Rule 59; ii) each administrative board or tribunal appearing in the court appealed from whose jurisdiction is in issue; and iii) each Attorney General who intervenes in a case where a constitutional question has been stated. (RR. 2, 22 and Form 22)
- What documents now need to be included in an Application for Leave to Appeal?
An Application for Leave to Appeal must include the following documents:
- a notice of Application for Leave to Appeal (in Form 25A);
- any affidavits in support of the application;
- a certificate in Form 25B that states whether or not there is a sealing order or ban on the publication of evidence or the names or identity of a party or witness, gives the details of the sealing order or ban, if any, and includes a copy of any written order;
- copies of all formal judgments as issued by the lower courts and the reasons for judgment;
- a memorandum of argument comprised of seven parts (under the old Rules the memorandum contained five parts)
- the documents that the applicant intends to rely on (previously the documents relied upon appeared before the memorandum of argument). (R. 25).
- How many copies of the leave of the application must now be filed with the Registrar?
Applicants must file with the Registrar the original and five copies of an application for leave (under the old Rules only four copies had to be filed). (R. 26).
- When is the Respondent's response on an Application for Leave to Appeal due and does an Applicant have a right of reply?
The Respondent's response is due within 30 days (not 30 clear days), after the service of the Application for Leave to Appeal. An Applicant has a right to reply — from a strategic point of view this right should be exercised (getting the last word in is always advantageous). The reply is due within 10 days (not 7 clear days as previously), after the service of the response. (RR. 27 and 28).
- Once leave has been granted, how long does the Appellant now have to file materials?
Appellants now have less time — one month less — to file their materials. Pursuant to Rule 35, the Appellant's material (Factum, Record and Book of Authorities) is due within 12 weeks after the filing of the Notice of Appeal. When a motion to state a constitutional question is brought, the timing for filing changes. In such instances, the time only starts running once the question has been decided.
- What's a summary of the main Appeal time-periods?
- once Leave to Appeal is granted: Notice of Appeal to be filed within 30 days (s.58(1)(b))
- Application for Leave to Cross-Appeal: 30 days from filing of Notice of Appeal where main Appeal is as-of-right (R.29(1))
- Motion to State a Constitutional Question: 30 days from granting of Leave to Appeal; if an appeal as-of-right, 30 days from filing of Notice of Appeal (R.60(1))
- Appellant's Factum, Record and Book of Authorities: 12 weeks from filing of Notice of Appeal (R.35(1))
- Respondent's Factum and Book of Authorities: 8 weeks from service of Appellant's Factum (R.36(2))
- Respondent's Record: 8 weeks from service of Appellant's Record (R.36(1))
- Motion to Intervene: 4 weeks from filing of Appellant's Factum (R.56(b))
- Intervener's Factum: 8 weeks from Court's Order granting intervention (R.37).
- What about the time-periods for a Motion to a Judge or Registrar?
- Response to Motion: 10 days (R.49(1))
- Reply to Motion: 5 days (R.50(1))
- And time-periods for a Motion to the Court?
- Response to Motion: 10 days (see RR. 52-54 generally).
- How many copies of the Appellant's and Respondent's Record and Book of Authorities need to be filed with the Registrar?
The number of copies of the Record that must be filed with the Registrar has changed. The Appellant has to file the original and 23 copies of that volume of the record containing Parts I and II, and 12 copies of all other volumes . As for the Respondent, the original and 11 copies need to be filed. The number of copies of Books of Authorities to be filed has increased from 12 to 14. (RR. 35 and 36).
- Can the Book of Authorities contain excerpts and electronic versions of Judgments?
In the case of reasons for judgment of the Supreme Court of Canada, only relevant excerpts (from the Canada Supreme Court Reports or from an electronic database if the reasons were delivered after 1994 and the paragraph numbering in the reasons is consistent with the numbering of the SCR's) need be included in the book of authorities. In all other cases, the book of authorities must contain the reasons for judgment in full unless these are available electronically in which case the headnote and relevant excerpt only are required. (R. 44).
- Do Interveners need to be served with a copy of the Factum, Book of Authorities and Record?
Under the new Rules only interveners who specifically request a copy of the Appellant's or Respondent's Factum and Book of Authorities need be served with these documents.
(RR. 35 and 36).
- Appeal hearing: are all parties entitled to present oral argument and can this right be lost?
Interveners must obtain authorization to present oral argument at the hearing of an appeal. Very important: Interveners or Respondents who fail to file their factum within the deadlines lose the right to present oral argument unless a judge on motion otherwise orders. (RR. 59 and 71).
- When can a motion for intervention and a motion to state a constitutional question be brought?
The motion for intervention is due, in an Application for Leave to Appeal, within 30 days after the filing of the application for leave and, in an appeal, within four weeks after the filing of the factum of the Appellant (under the previous rules, the motion was due within 60 days of the Notice of Appeal). Constitutional questions are to be applied for within 30 days of leave being granted or the Notice of Appeal as-of-right being filed (instead of within 60 days of the filing of the Notice of Appeal). (RR. 56 and 60).
- Is it possible to get a video or transcript of a previous appeal hearing?
Yes.
- Video: call International Duplication Services at (613) 761-7777
- Transcript: call the S.C.C. Registry at (613) 996-8666
- How many judges hear a Leave to Appeal?
Leaves to Appeal are "heard" in writing, with only one or two a year heard orally. The Court is divided into three panels of three judges each. A Leave to Appeal is referred to a three-judge panel who makes the decision to grant or dismiss Leave. Mr. Justice Sopinka, in his book Conduct of an Appeal, gives a summary of the Court's internal procedure whereby other members of the Court are made aware of the anticipated decision on the Leave, and have an opportunity to consult.
- How many judges hear an Appeal?
Minimum five, maximum nine. Most times it's nine or seven.
- What do you call a judge?
In Court "Chief Justice", "Justice", "Mr. Justice" or "Madam Justice". The following are not advised (in the S.C.C.): "Your Worship/Ladyship", "My Lord/Lady".
- What is the breakdown for Leaves to Appeal as to what jurisdiction the cases come from and what type of cases are they?
The most recent complete statistics are for the calendar year 2004, as follows:
| Jurisdiction: |
|
| Québec |
133 |
| Ontario |
150 |
| Federal Court of Appeal |
83 |
| British Columbia |
75 |
| Alberta |
47 |
| Manitoba |
20 |
| Nova Scotia |
15 |
| Saskatchewan |
18 |
| Newfoundland and Labrador |
4 |
| New Brunswick |
10 |
| Northwest Territories |
0 |
| Prince Edward Island |
3 |
| Yukon |
1 |
| Nunavut |
0 |
Type of case:
(cases are classified by the principal area of law)
| Criminal Law |
18% |
| Procedural Law |
16% |
| Administrative Law |
8% |
| Commercial Law |
11% |
| Torts |
8% |
| Charter (civil) |
4% |
| Charter (criminal) |
6% |
| Labour Law |
4% |
| Property Law |
6% |
| Taxation |
4% |
| Family Law |
3% |
| Statutes |
4% |
| Others |
8% |
| Note: Of all applications for leave, 25% were criminal and 75% were civil. |
- What about Appeals?
| Jurisdiction: |
|
| Ontario |
11 |
| British Columbia |
11 |
| Québec |
30 |
| Alberta |
11 |
| Federal Court of Appeal |
8 |
| Manitoba |
3 |
| Newfoundland and Labrador |
4 |
| Prince Edward Island |
0 |
| New Brunswick |
1 |
| Northwest Territories |
0 |
| Nova Scotia |
2 |
| Nunavut |
0 |
| Saskatchewan |
2 |
| Yukon |
0 |
Type of case:
(cases are classified by the principal area of law)
| Criminal Law |
24% |
| Charter (criminal) |
11% |
| Commercial Law |
12% |
| Labour Law |
4% |
| Administrative Law |
4% |
| Charter (civil) |
10% |
| Constitutional Law |
11% |
| Torts |
6% |
| Others |
10% |
| Note: Of all appeals, 35% were criminal and 65% were civil.
The Constitutional Law and Criminal Law categories do not include Charter cases. |
- How long does it take for the Court to make a decision on Leaves to Appeal and Appeals:
- Leaves to Appeals: most recently in the range of 4-6 mos.
- Appeals: most recently, for reserved decisions, about 6 mos.
- Can I make a copy of a Factum or Leave to Appeal that's been filed?
Yes, by going in person (50¢ a page) or contacting an Ottawa S.C.C. agent.
- I lost in the Court of Appeal, but a judge dissented. Can I appeal to the S.C.C. "as-of-right".
Yes, if the dissent was on a question of law, in which case you have to file a Notice of Appeal within 30 days (not 60) of the date of the C.A. judgment (s.58(1)(b)). You also have to state the question of law on which the dissenting judgment is based, and include the judgment and reasons (R. 33).
- I lost in the Court of Appeal but was successful in obtaining Leave to Appeal. Can I limit my grounds of appeal?
Yes (s.57).
- How much does it cost to file a Leave to Appeal and an Appeal?
Leave to Appeal: $50 court costs.
Appeal: no fee, though a $500 security deposit is applicable in most cases. In practice, the security deposit is waived.
- As Respondent, can I bring a Motion to Quash an appeal?
Yes, within 30 days after the filing of a Notice of Appeal (s.44, RR. 52,63)
- Can I appeal to the Court to rehear a case?
Yes (R. 76).
- If I paid in a security deposit, can I get it paid out?
Yes, on Motion to the Registrar (R. 86).
- Does the Court of Appeal below send its file to the S.C.C.?
Yes, after a Notice of Appeal is filed at the S.C.C. and a copy filed with the Court of Appeal below. (i.e. after Leave has been granted or it's an appeal as-of-right) (s.63).
- The documents in the S.C.C. have different colours. What are they?
- grey: Leave to Appeal, Applicant (both Application and Reply)
- green: Leave to Appeal, Respondent (and Application to Cross-Appeal
also)
- beige: Appeal, Appellant's Factum & Book of Authorities
- orange: Appeal, Appellant's Record
- green: Appeal, Respondent's Factum & Book of Authorities
- grey: Appeal, Respondent's Record
- blue: Appeal, Intervener's Factum
- How is time, i.e. days, weeks, months calculated?
- all references to a number of days refer to calendar days
- the day on which a first event occurs is excluded (s.27(2) Interpretation Act)
- the day on which a second event occurs is included (s.27(2) Interpretation Act)
- a holiday is not included in the computation of a period of less than 6 days (R. 5(2))
- July is not included in computing time except for: service and filing of a Record, Factum, Book of Authorities (R. 5(3))
- if one's deadline date to file something falls on a day the Court is closed, one files the next succeeding business day.
- The other side won't accept service of my Leave to Appeal, and says he's not been retained on anything to do with the S.C.C.
Counsel in the court appealed from is now (under the new Rules) deemed to be counsel in the S.C.C. (R. 15(1)).
- I applied for Leave to Appeal and it was dismissed. Can I re-apply?
You can apply for a reconsideration (R. 73), not for a re-hearing (R. 74).
- I want to add or substitute a party. Can I?
Yes (R. 18).
- Various parties in the C.A. below are taking no interest in the Leave I'm filing at the S.C.C. Do I have to serve them?
No. Mail them a copy of the Notice of Application for Leave to Appeal (R. 26(2)(a)), or Notice of Appeal if it's as-of-right (R. 34).
- I won my Leave to Appeal or Appeal, and they won't pay my costs. What do I do?
File a Bill of Costs and Notice of Taxation and set the matter down to be heard by the Registrar (RR. 83-84). In most cases it's "heard" in writing.
- I'm on for an Intervener. Will the main parties serve me with a copy of their Factum, Record, and Book of Authorities?
They're not obligated to. You have to ask them (R. 35(1)(b)).
- I'm doing the Book of Authorities. Do I put in the whole case?
- No, if S.C.R. citation or reliable electronic database (you need only put in headnotes and extract — page before and page after recommended)
- Yes, if not S.C.R./reliable electronic database.
- Does every S.C.C. have its own 5-digit I.D. No.?
Yes, assigned in practice a week or two after a Leave to Appeal is filed or a Notice of Appeal if as-of-right.
- I want to file a Leave to Appeal at the S.C.C. but the other side won't cooperate with me so I don't yet have the Formal Order of the C.A. below. Do I get longer to file my Leave or do I have to file the Leave without the Formal Order?
The latter: time is not extended because you don't yet have a Formal Order.
- What do I do?
Set the matter down in your Court of Appeal for the Formal Order to be entered, send it to your Ottawa Agent as soon as it is, and delete the other side from your Christmas Card List.
- Will the S.C.C. "hear" the Leave to Appeal without the Formal Order of the C.A. being filed?
No, and your Leave application may be dismissed by the Registrar if the outstanding Formal Order is not filed within three months of the Leave application.
- Can I apply to be a Law Clerk to an S.C.C. judge?
Sure. The Court's Executive Legal Officer sends an information package to law faculties in September of each year, and the information is usually posted on a notice board in the faculty building. You can also write to:
Ms. Cara McLean
Chambers of the Chief Justice
Supreme Court of Canada
Supreme Court Building
30 Wellington St.
Ottawa, ON K1A 0J1
Interviews are done (by the judges) in March of each year. The job currently pays $48,276.00.
- Can I use the S.C.C.'s Law Library?
The Court's 200,000-plus volume library (plus just about every legal periodical everywhere) is non-circulating and accessible only to lawyers and notaries. Others need special permission. It takes up the third floor of the building (and portions of the basement too). It's got an extensive rare book collection from the 16-18th centuries of both English common law and French civil law — and its Scottish collection is pretty good too.
THAT'S 50 FAQ'S, AND WE ADDED ONE MORE:
- Can I visit the building?
Sure. It's open 8:30 am–5 pm weekdays (and May 1–Aug 31 weekends too, 9 am–5 pm). You can book a guided tour (for a group) by calling (613) 995-5361. There's no charge – and no tipping either.
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