So you reached the appellate court in your jurisdiction and you’ve lost… now what? The Supreme Court of Canada (SCC) can overturn the appellate court’s decision but it’s not so simple. As you can imagine, the SCC is inundated with requests from applicants looking to have their case heard. Understandably, the SCC cannot hear from everyone. Instead, an interested party must file a Leave to Appeal, essentially asking to have their case heard. The SCC receives 600 leave applications each year, and roughly 80 are granted. Those 80 then go on to be heard by the full court and the case is decided on its merits. But this begs the question, how does the SCC decide which cases are worth hearing?
Section 40(1) of the Supreme Court Act outlines the test for a party seeking leave to appeal: does the case present an issue of national importance? A leave application is unlikely to succeed by merely showing that the appellate court below committed an error. Rather, for the SCC to get involved the applicant must demonstrate that the case is of the utmost importance to society on a national level. However, there is some uncertainty regarding the SCC’s reasons for granting or denying leave applications as the SCC does not provide written reasons for its decisions in this regard. That being said, Justice Harris of the British Columbia Court of Appeal opined on what he believed to be relevant elements of the national importance test in Byatt International SA v Canworld Shipping Company Limited, 2013 BCCA 558:
- Conflicting provincial appellate authority on the issue;
- A conflict between different regimes of law that might govern the facts; and
- International or jurisdictional conflicts or conflicting results that might arise from the application of the case-specific legal principles in different jurisdictions.
Still confused? I don’t blame you. The SCC is the highest court in this country, and approaching the court can be very intimidating. Lucky for you, appellate lawyers at Vogel LLP have experience with SCC Leave to Appeal applications and are here to help.