How To Develop An Appealing Personality: Getting Leave to the Supreme Court of Canada (or, Making Sure the C.A. Isn't the End of the Road)

• Introduction
• Overview of the Process
• The Standard for Granting Leave
• Whether to Apply for Leave in the First Place
• Practical Advocacy
• After the First Draft...
• Conclusion

1. Introduction

This is, very deliberately, a brief practical non-academic no-nonsense primer on some practical points of (written) advocacy at the leave to appeal stage in the Supreme Court of Canada.

Precedents are attached.

Because precedents (from recent files) are attached, this paper can be mercifully brief, pragmatic, and to the point — there is nothing worse than a long literary narrative on how to write better or be a better advocate — the only thing worse is a whole book on the subject. ¹

Some basics:

• leaves to appeal are done in writing, and "heard" in writing.
• oral hearings are rare (perhaps 1 or 2 a year).

Some recent contextual statistics:²

• numbers of leave applications are generally up: of cases filed in 2002 : 523, up from 449 in 1990, and up from 500 in 1995. An overall increase of 16 % from 1990 and 4.61 % from 1995.
• time taken to decide leaves to appeal has also increased: 4.6 months in 1990, up from 3.8 months in 1995, 5.7 months in 2001.
• areas of law for applications for leave to appeal (2002):
  • Criminal: 19 %
  • Procedural: 15%
  • Charter (Civil and Criminal): 14%
  • Commercial: 9%
  • Constitutional: 3%
  • Administrative: 8%
  • Labour: 3%
  • Municipal: 2%
  • Maritime: 2%
  • Property: 5%
  • Torts: 7%
  • Family: 4%
  • Tax: 5%
  • Statutes: 2%
  • Others: 7%
    (Of all Applications for Leave, 29% were criminal and 71% were civil)
• Applications for Leave to Appeal by region/court (2002):
  • Québec: 146
  • Ontario: 136
  • B.C.: 62
  • Fed.C.A.:64
  • Alberta: 28
  • Manitoba: 12
  • Saskatchewan: 16
  • Nova Scotia: 15
  • New Brunswick: 6
  • Newfoundland: 4
  • P.E.I.: 2
  • Yukon: 1
  • N.W.T.: 0
  • Nunavut: 0

2. Overview of the Process

How the leave to appeal process actually works internally at the Court itself is partially described in two articles by former law clerks³, and is also described in Mr. Justice Sopinka's book Conduct of an Appeal⁴:

"At any particular time, the Court is divided into three panels of three judges for the purposes of applications for leave. On a periodic basis (usually weekly), the list of completed applications for leave (those ready for submission to the Court), are separated into three lists, each of which is allocated to one of the three panels. Each application is assigned to a lawyer from the Legal Services branch of the Court for the preparation of an objective summary and memorandum outlining the facts, issues and submissions of the parties. The objective summary and memorandum are used as briefings for the panel considering the application.

The panel seized of the application processes it with each member of the panel voting either to grant leave or dismiss. The panel then prepares its own memorandum summarizing its decision, which is circulated to all members of the Court. In a few applications, the decision is deferred by placing it on "Appendix C", which is discussed below. In cases in which the panel determines (unanimously or by a majority) that an application should be granted, the application is placed on "Appendix B" to be considered further at a Conference of the Court. Other members of the Court are advised that the application has been placed on "Appendix B".

The procedure with respect to applications that do not find immediate favour with the panel is somewhat more elaborate. Where the panel determines that an application should be dismissed, notice is provided to all members of the Court that the panel proposes to dismiss the application on a specific date (usually a few weeks hence). If a member of the Court not on the panel seized with the application is of the opinion that the application, by reason of its public importance, ought to be discussed by the full Court, notice is given to the other members of the Court, and the application is deferred to a subsequent conference of the full Court at which outstanding applications for leave are considered. The application is then referred to as an "Appendix D" application. A dissenting member of the panel seized of the application can place the application on "Appendix D" at the time that the panel's proposed disposition is announced.

Appendices B and D applications are reconsidered by the panel seized with the application in light of comments received from the full Court at the conference held for that purpose. The decision of the panel is generally made during the discussion at the conference, and judgment is released shortly thereafter.

An alternative category of application for leave is referred to within the Court as "Appendix C". These are applications which raise issues already before the Court either in other applications for leave or in appeals in respect of which leave has been granted. In the past, Appendix C applications were generally deferred pending the outcome of the prior application appeal."

An overview of the complete process (prepared in-house at Lang Michener and put at the front of every file so that notes and dates can be added as that file progresses) for both the leave to appeal process and appeal process itself, with each step set out and the procedural or substantive authority for same, with deadlines and brief comment, is as follows:

Main Procedural Leave to Appeal and Appeal Steps

Step	Section/ Rule	Time Period
1. Leave to Appeal (LTA)	s.58(1)(a) R. 25/26	"Serve & file within 60 days after the date of the judgment appealed from 5 structure and content see R. 25 (grey cover) file original + 5 copies (previously 5 total) for service see R. 26 & s. 58(1)(a) IMP: Rule 26: copy of Notice of Application to all other parties and interveners in the court appealed from (ordinary mail last known address); file with Registrar affidavit attesting to names of parties & interveners & addresses to which copies were sent IMP: for Appeals as of Right, it's 30 days (to file NoA), NOT 60
2. Response (R)	R. 27	Serve & file within 30 days after service of LTA (previously 30 clear days) original + 5 copies green cover
3. Reply (Ry)	R. 28	Serve & file within 10 days after service of Response (previously 7 clear days) original + 5 copies grey cover
4. Leave to Cross Appeal	R. 29	Serve & file within 30 days after service of LTA/NoA if AoR original + 5 copies green cover IMP: R. 29(1)(b): copy of Notice of Application to all other parties & interveners in the court appealed from (ordinary mail last known address) R. 29(1)(c): file with Registrar affidavit attesting to names of parties & interveners & addresses to which copies sent
5. Response to Cross-Appeal	R. 30 Form 29	Serve & file within 30 days after service of Application for leave to Cross-Appeal original + 5 copies grey cover
6. Reply to Cross-Appeal	R. 31	Serve and file within 10 days after service of Response original + 5 copies green cover
7. Leave to Appeal Granted Dismissed With Costs Without Costs
8. Judgment & Notice of Deposit of Judgment		Sent by Clerk of Process within 1 week after LTA judgment.
9. Order ("Formal Order granting Leave" - FOGL)		(Now) done by SCC
10. Notice of Appeal (NoA)	s. 60(1)(a) s. 58(1)(b) s. 60(4) s. 63 RR. 33-34 Form 33	Serve & file within 30 days of LTA granted, or 30 days of judgment appealed from if AoR6 file (within 21 days of NoA filed in SCC) copy with court appealed from (request in letter that court send their appeal court record to S.C.C. — write to client to see if they will do so/want us to). IMP: R. 33: if AoR, to include: QoL on which dissenting judgment based Judgment & reasons Form 25B re: whether sealing order/publication ban IMP: R. 34: NoA must be sent to all other parties and interveners in the court appealed from (ordinary mail last known address); file with Registrar affidavit attesting to names of parties & interveners & addresses to which copies sent. s.57: Appellant can limit grounds of appeal.
11. Security Deposit (SD)	s. 60(1)(b) s. 64 (amendment pending to abolish)	$500 within 30 days of LTA judgment. Do at same time as NoA. Not if: criminal, habeas corpus, Federal Court, election cases, or "appeals by or on behalf of the Crown"
12. Constitutional Question	s. 60(1)(b) s. 64 (amendment pending to abolish)	Serve & file within 30 days after LTA has been granted or after filing NoA in appeal for which leave is not required 7
13. Application to Intervene	RR. 60-61	LTA: within 30 days after filing of application for LTA Appeal: within 4 weeks after filing of factum of appellant
14. Motion to Quash	s. 44 R. 63	Within 30 days after filing of a proceeding (previously 60 days after NoA)
15. "Case" or "Appeal Court Record"	s. 63	Sent by CA to SCC ("as soon as may be" after service of the NoA on the CA).
16. Appellant's Factum (AF) Appellant's Record (AR) Appellant's Book of Authorities (ABA) If Cross-Appeal, see RR.35(3)-(4)36(2)(a)(i)43Form 29	R. 35 R. 38 R. 40 R. 42 R. 44	Serve & file within 12 weeks after filing NoA8 (ie 1 month less)If CQ, 12-week period starts running once CQ decided). Serve: 3 copies Factum 1 copy Record & Book of Auths. 1 copy of Factum and Book of Auths. on intervener who requests File: original + 23 copies Factum, & Record with Parts I & II 12 copies of other volumes of Record 14 copies Book of Auths. Factum: beige Record: orange Book of Auths.: beige Contents of Record: R. 38 Printing of Record: R. 40 Contents of Factum: R. 42 Contents of Book of Auths.: R. 44
17. Respondent's Factum (RF) Respondent'sRecord (RR) Respondent's Book of Authorities (RBA)	R. 36 R. 39 R. 42 R. 44	Serve & file within 8 weeks of service of Appellant's Factum and Record Serve: 3 copies Factum 1 copy Record &Book of Auths. 1 copy of Factum &Book of Auths. on intervener who requests File: original + 11 copies Record original + 23 copies Factum 14 copies Book of Auths.Factum: green Record: grey Book of Auths.: green Contents of Record: R. 39 Printing of Record: R. 40 Contents of Factum: R. 42 Contents of Book of Auths.: R. 44
18. Intervener's Factum Intervener's Book of Authorities	R. 37 R. 39 R. 44 R. 44	Serve & file within 8 weeks of order granting leave to intervene or if an Attorney General, within 20 weeks of the filing of a notice of intervention under R. 61(4) Serve: 1copy (Factum & Book of Auths.) File: original +23 copies Factum 14 copies Book of Auths. Covers: blue Contents of Book of Auths.: R. 44
19. Scheduling Appeal	R. 69(2)	After Respondent's factum is filed or due (8 weeks after AF) Registrar issues list of appeals and send notice of hearing to all parties.
20. Condensed Book	R. 45	If Record & Book of Authorities 3 or more volumes Serve: 1 on all parties File: 14 copies with Registrar on day of hearing same colour as Factum
21. Name of Counsel appearing at Appeal, to Registrar	R. 71(4)	At least 2 weeks before the appeal is heard [mark date here when informed of date of Appeal]
22. Book of excerpts for Oral Argument	Sopinka Book "Conduct of an Appeal"	File in SCC & give to other counsel morning of appeal.
23. Appeal Granted Dismissed With Costs Without Costs
24. (Formal) Judgment		Sent by Clerk of Process approx. 2 days after Judgment rendered.
25. Application to Rehear	R. 76	Before judgment or within 30 days
26. Payment out of Security for Costs	R. 86	No time period. On Motion to the Registrar.
27. Discontinuance or Dismissal	R. 93 R. 64(LTA) s. 69R.65 (appeal)	No time period. On Motion to the Registrar.
Other Important Time Periods
Motion to Court	RR. 52-54	Original and 14 copies (grey cover) Response: within 10 days after service of motion (green cover) After Response filed/10 day period ended, Registrar sends notice of hearing
Motion to single Judge or Registrar	RR. 47-51	Original and 2 copies Motion related to LTA may be filed with LTA Response: within 10 days after service Reply: within 5 days after service

3. The Standard for Granting Leave

The standard — even though it's circular — is set out in s. 40 (1) of the Supreme Court Act:

"by reason of its public importance or the importance of any 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 " (emphasis added).

Probably a more realistic and practical standard is that set out by Madame Justice Wilson in a 1989 decision;

"it is important to look not only at the impugned legislation ... but also to the larger social, political and legal context."⁹

Another standard which may be realistic is the following:

"Does this sound like an interesting case we'd like to hear argued before us?"

Were the latter true in some cases, then strategic considerations enter into how the leave to appeal factum and response factum (depending on the case) should be drafted.

4. Whether to Apply for Leave in the First Place

Some practical considerations:

• you've got 60 days to put in your leave to appeal. Wait until you (or your client) have cooled off from losing at the Court of Appeal — make the decision carefully and objectively: ask the question: will your case satisfy (or be made to satisfy) the standard for leave?
• do chances of success warrant the cost and trouble?
• if you've lost at the Court of Appeal in a particular province/territory, is there a risk that appealing to the Supreme Court of Canada could mean losing there too, and thereby establishing a negative country-wide precedent?
• is there a solid and substantive basis for the appeal (as compared to a procedural/interlocutory one) with issues really suited for a determination by Canada's highest court?
• is the decision below based more on credibility or findings of fact?
• even if there is an error of law below, is it so substantial as to have affected the outcome of the trial or the Court of Appeal decision?
• are you really filing a leave to appeal because your clients want you to, or because it is your considered and professional opinion that an appeal is order, and has a realistic chance of success?
• are there Court of Appeal decisions in opposition to each other that require settling by the S.C.C.?
• if there is a Charter issue, was it squarely raised at trial and was there a sufficient factual context put forward at trial to sustain it?
• if a particular provincial/territorial statute /regulation (or provision thereof) is in issue, are there similar provisions in other provinces/territories/federally which one could argue would be directly affected by a S.C.C. decision?

5. Practical Advocacy

To get right to it, the key practical considerations when 'designing', drafting and strategising a factum are bulletized below.

But first, three preliminary strategies that can develop the impact of a factum, all three rather obvious, but all three often (surprisingly) ignored in practice:

• The opening:
  Your factum should create anticipation immediately. A strong focussed opening paragraph emphasizing the public importance (or lack of public importance if you're the respondent) can be very effective. Don't do the usual and simply give a one-paragraph procedural history of what happened below. See precedents for examples.
• Analogy:
  An analogy that brings home the essential importance of your case (or again non-importance if you're the respondent). Recently seen:
  • a case involving discipline of an auditor by a discipline panel allegedly comprising direct competitors: "It will be the legal equivalent of a cow wandering in to a slaughterhouse".
  • a sex abuse case: " A neon light that never goes off".
  • a re-trial of a 79-day trial involving elderly (aboriginal female) witnesses: "The legal equivalent of watching ambulance drivers stuffing car accident victims back in to the car wrecks".
• The closing:
  Likewise can be very effective. Can pull the whole factum together into one whole, or rephrase and redevelop the opening, to give the factum a feeling of logic.

1. When Acting for the Applicant
   • consider filing an affidavit with the leave to appeal, setting out the reasons why your case raises issues of public importance. Not an expensive hired gun (academic or otherwise), and certainly not a lawyer; preferably somebody objective from that industry who can attest as to impact, and what that impact is.
   • if legislation is involved, look at other provinces/territories/federally to see if they have similar provisions, and list excerpts in a pull-out chart. Thereby suggest all of that legislation is also "on trial".
   • if legislation is in conflict, emphasize the problem this conflict produces, and the appropriate role of the S.C.C. in giving a national solution.
   • in criminal cases, emphasize a question of law impacting on the administration of justice, or the Charter itself.
   • in both criminal and civil cases, conflicting Court of Appeal decisions should of course be highlighted.
   • something very important for every Applicant is that the facts are their Achilles' heel. The S.C.C. presumably wants cases with clean settled facts, not cases with highly disputed facts when they're being called upon to be a trial court. A good way to deal with it is to do a strong first paragraph which sets out what the case is really all about ("This case is about..." is good), followed by a second paragraph giving only the necessary facts the S.C.C. needs to know to understand the legal issues and understand the issue of public importance (commencing for example "A brief factual chronology is as follows:..").
   • the opening paragraph is key. It sets the scene. It should tell it all, in simple non-legal language. It may be read first.
   • likewise the issues section. May be read first. Must be drafted with extreme care to demonstrate public importance.
   • Table of Contents may be read first also. Here headings and subheadings which make a positive statement, and develop a logical flow, should be used.
   • if the proper role of the Court of Appeal viz-a-viz the judge-at-first — instance role of the trial court is possibly in issue (for example, assessing the evidence), have a look at (and possibly quote/refer to) the following S.C.C. cases:
     • Pax Management Ltd. v. Canadian Imperial Bank of Commerce [1992] 2 S.C.R. 998 at 1013
     • Ont. (A.G.) v. Bear Island Foundation [1991] 2 S.C.R. 570 at 574
     • R. v. Burns [1994] 1 S.C.R. 656 at 663
     • R.J.R. MacDonald Inc. v. Canada (A.G.) [1995] 3 S.C.R. 199 at 334
     • ter Neuzen v. Corn [1995] 3 S.C.R. 674 at 694, 701-2, 709
     • D'Amato v. Badger [1996] 2 S.C.R. 1071 at 1090-91
     • Schwartz v. Canada [1996] 1 S.C.R. 254 at 278-281
     • Hickey v Hickey [1999] 2 S.C.R. 518 at 528-529
     • and most recently (unreported as of date of writing) Hansen v Nikolaisen S.C.C. Mar 28, 2002.
   • particularly when on for the Applicant, resist the temptation of the protective cover of legal jargon and academic argumentation. Be real. Be yourself. Write it the way you'd say it. The way you'd explain it to the person making you a "medium double double"¹⁰ at Tim Horton's or a "unleaded Twiggy"¹¹ at Starbucks. Write your academic article later, after you've won.
   • do not be tempted to argue the whole appeal or do a redraft of your Court of Appeal factum. It's all different now, there's only one theme: public importance.
   • likewise do not focus on all the merits of the appeal or why you should win the appeal or worse, focus in on the factual detail of your case.
   • it can be very useful (for the Court) to set out both the jurisprudential and social context of your case, and tie it to practical reality.
   • because practically no leaves to appeal are actually heard orally, the written memorandum of argument "should be a self-contained and comprehensive explication of the reasons why the case deserves the attention of the Supreme Court.¹²"
   • you should not have more that two or three points in issue — some have ten or more, which dilutes effectiveness — few Courts of Appeal make ten major errors in one judgment.
   • the final and fundamental point is that the leave to appeal factum should be specifically designed and drafted so as to get the Court's interest, not convince them of the right of your case or the merits of your appeal. It's almost worth drafting your leave to appeal factum from scratch without looking at facta below.
2. When Acting for the Respondent
   • See above with regard to certain matters such as headings, table of contents, analogies etc. which also apply to a Respondent.
   • As noted above, the facts are the Applicant's Achilles' heel. One option (among others) is to attack the heel, argue facts, not law (unless the law is settled, and settled recently by a Court of Appeal/Supreme Court of Canada decision). Do a complete review of the trial transcript (or material filed in chambers) and see what key facts/factual findings you can legitimately take issue with.
   • If you can argue the case is only important locally, or to the parties themselves, say so, and say why.
   • If the trial judge was upheld by a unanimous Court of Appeal, say so — in the first (or second) paragraph.
   • Only argue law if you really have to — there's only really one issue: public importance, and should the S.C.C. want to hear the case. The actual legal merits of the case are of secondary importance — for now (of primary importance at the appeal itself).
   • Can the case at trial or at the Court of Appeal below be developed by you as Respondent in such a way as to encourage the reader to legitimately think "This has all been fully dealt with below. Why should we get in to this?"
   • Consider the pros and cons of filing an application to adduce fresh evidence (and consider filing the fresh evidence with the application).
   • As a Respondent, the best way to win at the Supreme Court of Canada is never to go there at all: put the necessary time and resources in to your response factum, to avoid the risk and expense of a full appeal.
   • A pragmatic way to respond to a leave to appeal is:
     • this is a factually based case;
     • set out the trial judge's/chamber's judge's key findings, which if undisturbed, leave no issue;
     • the case is important only to the parties;
     • the case is important only to the particular locality/province/ territory;
     • the case is not really a "final or other judgment"¹³ of a Court of Appeal, but rather procedural or interlocutory in nature.
   • A strategically-written Response factum should be focussed, surgical and above all sleep-inducing — encouraging the reader to say "no big deal here".

3. When Acting for the Intervener (In a leave to appeal)

   In some (though not many) you may wish to apply to intervene:

   • You can apply for leave to intervene in a leave to appeal.¹⁴
   • Focus in on the issue of public importance.
   • Walk your own path. Don't merely sing in the choir of one side or the other.
   • Consider putting in a draft factum as part of your application to intervene, as an exhibit to your affidavit.

6. After the First Draft & Prior to Filing: Technical Compliance

The Court is being very strict on technical compliance with the Rules at this time — for example, failure to comply with prior Rule 33(3)(c), whereby every 10th line is to be numbered in the left-hand margin, had resulted in factums being rejected.

But it is more important than mere technical compliance: the closer your factum is to the standard format in which the judges and their clerks generally read factums, the more persuasive and professional your factum will be.

Supreme Court of Canada Registry gives out a checklist to counsel when a factum is rejected, which sets out selected technical matters the staff specifically check, some of which are as follows:

• 21.5 cm x 28 cm paper
• printed on left
• proper font size (typeface no smaller than 12 pt and no more than 12 characters per 2.5 cm)
• proper line spacing (1 ½)
• correct colour of cover
• correct style of cause per Rule 22 (2) - (3)
• names, addresses, telephone, fax and email addresses of counsel and agents
• material noted chronologically with dates (in table of contents)
• pages numbered top centre
• paragraphs numbered consecutively
• not in excess of page maximum
• table of authorities: Supreme Court Report cites, alphabetical order, page
• reference(s) in factum
• signed by counsel
• reasons and formal judgment for all courts below
• proof of service.

7. Conclusion

In conclusion, leaves to appeal are the most common filing at the Supreme Court of Canada, ranging from approximately 550 - 650 the last couple of years. To get leave, practical written advocacy is important. It's not difficult. It only takes time. And a brutal editor. But as everyone's mother has probably told every child, "If it's worth doing, it's worth doing well".¹⁵

1 See Selected Bibliography in Appendix.
2 All statistics from "Statistics 1992 - 2002, Supreme Court of Canada
3 L. Sossin, "The Sounds of Silence: Law Clerks, Policy Making and the Supreme Court of Canada", (1997) 30 U.B.C. Law Review 279; McInnes, J. Bolton, N. Derzko, "Clerking at the Supreme Court of Canada" (1994) 33 Alberta Law Review 58. See also Hon. Bertha Wilson, "Decision-Making in The Supreme Court".(1986) 36 U of T Law Jo. 227.
4 Mr. Justice Sopinka and Mark Gelowitz, second edition, (Butterworths, 2000) pp. 234-243.
5 S. 58(2) and R. 5(3) - July does not count for LTA or NoA deadlines or other time periods except as specified in R. 5(3) (ie. record, factum or book of authorities at appeal stage).
6 No A must set out the provision of the statute that authorises the appeal. In the case of an appeal under Criminal Code see Rule 33(1)(d).
7 Rule 60 now allows an A.G. to bring a Motion to state a constitutional question without being required first to obtain leave to intervene.
8 R. 35(2): If a motion to state CQ filed, 12-week period starts running once CQ decided.
9 R. v. Turpin [1989] 1 S.C.R. 1292 at 1331.
10 Medium coffee, double cream, double sugar.
11 Decaf, non-fat café au lait.
12 Supra note 4, p. 239
13 s.40(1) Supreme Court Act
14 Rule 55, but on motion
15 The Celtic Corollary, oft — quoted by my grandfather: if it's not worth doing "Save yeer breath tae blaw on yeer porridge"...