Leave to Appeal to the Supreme Court of Canada
The opportunity of obtaining leave to appeal to the Supreme Court of Canada does not come around too often in our area of practice. While daunting, it is a challenge I would love to meet. That is why I was captivated by an article in the National (Volume 20, No 7) addressing what we need to know before seeking leave.
The key points I noted are:
· Different test – it is not good enough to file the factum relied on before the Court of Appeal; you are addressing a different test – the public importance or national interest test.
· Reframe the Case as a Public Importance Issue – this is critical – Supreme Court Rules were recently amended to require applicants to highlight the public importance of the case at the outset of the written materials. While we are encouraged to lift our sights and put the judgment in a broader context, the difficulty may be that “public importance” has not been defined. That said, some guidelines do exist, such as the issue of public importance must be central to the case and not moot or about to be dealt with by legislation.
· Pause – you may want to reflect for a week or two, then write a couple of pages about why the issue is one of public importance (not why the Court of Appeal erred) and have a colleague review it.
While the main theme here is public importance, given that only about 10% of leave applications are successful, and this test seems to be the gatekeeper, it is a point worth stressing.
Have a good day,
Natalia R. Angelini – Click here for more information on Natalia Angelini