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Highly Experienced Litigators Appearing Before the Supreme Court of Canada

The Supreme Court of Canada is Canada’s top and final court of appeal. It consists of nine judges, including the Chief Justice of Canada, and decides on legal issues of public importance. The Supreme Court of Canada hears appeals from the decisions of the highest courts of final resort of all provinces and territories (for example, the Court of Appeal of Ontario).

The Supreme Court truly is the ‘Everest’ of the Canadian legal mountain. Milosevic Fiske LLP is well equipped to navigate the difficult terrain towards the summit and we would be happy to assist you with applications for leave to appeal or with appeals before the Supreme Court of Canada.

Determining Whether to Seek Leave to Appeal

Before appearing before the Supreme Court, an applicant (i.e person seeking the appeal) must first obtain leave to appeal (i.e permission of the court). While there are appeals that are heard as of right, there are no automatic rights of appeal in civil proceedings.

The leave to appeal process begins with a decision from the Court of Appeal. An applicant has 60 days to seek leave to appeal from a judgment of the Court of Appeal to the Supreme Court.

In considering whether or not to seek leave to appeal, it is important to determine at the outset whether there is a question posed in the matter that goes beyond the parties’ individual interests. In order for leave to be granted, the case must raise an issue of national and public importance.

Leave to Appeal

The leave to appeal process begins with the formal application for leave to appeal. This will include:

  • the necessary parts of the record
  • a notice of the question posed for the court
  • a 20-page memorandum of argument.

Once the application for leave to appeal has been served and filed, the respondent has 30 days to respond. Then the moving party has 10 days to reply (such a reply is optional and should not raise any new arguments not yet addressed).

Approximately one month after all of the materials have been completed the case will be sent to a three-judge panel of the Supreme Court of Canada for review.

Within three months of the three-judge review, a decision granting or denying leave to appeal will be rendered. Only in the rarest of cases will the three-judge panel provide reasons for granting or denying leave to appeal. The normal practice of the Court is to provide no reasons at all. Only in the rarest of cases will the three-judge panel set an oral leave to appeal hearing. Almost all leave to appeals are decided in writing.

If Leave to Appeal Is Granted

If leave to appeal has been granted, the applicant, now known as an appellant, will have 30 days to serve and file a notice of appeal. The Court will likely unilaterally set a date for the hearing of the appeal not long after the notice of appeal is delivered.

Following the delivery of a notice of appeal, the appellant will then have 60 days (or less if the Court sets a schedule with a shortened deadline) to file their materials. Such materials will include the complete Appeal Record, transcripts, as well as the factum and any applicable book of authorities.

The respondent has 60 days (or less if the Court sets a shortened schedule) to file their response. Interveners will usually appear within a few weeks of the appellant’s materials being delivered.

The proposed interveners will serve the appellant(s) and respondent(s) with their motions for leave to intervene on the appeal. The parties will have ten days to respond and can do so in letter firm.

A single Judge of the Supreme Court will then issue an order granting or denying leave to intervene. In responding to intervention applications, the appellant could ask the single Judge determining the matter for a right of reply, particularly when the proposed interveners will likely oppose the appellant. If a right of reply is granted by court order, it is usually in the form of a brief reply not exceeding five pages.

At a minimum of two weeks prior to the hearing the parties must advise the Registrar of the Court of who will be appearing as counsel and who will specifically be presenting.

The Hearing

It is best to arrive in Ottawa one full-day before the hearing of the appeal.

On the day of the hearing of the appeal, the parties will learn whether there will be five, seven, or nine justices presiding over the appeal.

At the hearing itself, the appellant will generally be allotted one hour to present and the respondent will also be provided with one hour. Interveners are generally allotted five or ten minutes to present (which will have been determined well in advance by the Court). At the conclusion of the oral argument the Justices will either reserve decision or render a decision from the Bench.

Once the decision is released, either from the bench or several months later in a written decision, the parties may well deal with the issue of costs, which is done through the Registrar in the event that the Court has made an order as to costs.

Since appeals to the Judicial Committee of the Privy Council in London, England from Canada were abolished in 1949 (with the last case being heard in 1959), there is no right of appeal from a decision of the Supreme Court to any other court. It is the end of the line.

Our Representative Cases

At Milosevic Fiske LLP, we believe we are among the best litigation teams in Toronto. We have appeared at all levels of court, including before the Supreme Court of Canada.

Some of our recent representative work includes:

  • Oral argument on behalf of the appellant in Mazraani v. Industrial Alliance:

http://www.cpac.ca/en/programs/supreme-court-hearings/episodes/62324789

  • Our Factum on behalf of the appellant:

https://www.scc-csc.ca/WebDocuments-DocumentsWeb/37642/FM010_Appellant_Kassem-Mazraani.pdf

  • Our Reply Factum on behalf of the appellant:

https://www.scc-csc.ca/WebDocuments-DocumentsWeb/37642/FM060_Appellant_Kassem-Mazraani.pdf

For Exceptional Representation in Appeals to the Supreme Court of Canada Contact Milosevic Fiske LLP

The Toronto litigators at Milosevic Fiske LLP will guide you through the appeals process and skillfully represent you in all proceedings. Contact us to learn how we can provide you with proactive risk management and legal guidance. We are the lawyers other lawyers turn to for litigation. Call us at 416-916-1387 or contact us online for a consultation.