Leave Applications at the Supreme Court of Canada: Should Reasons be Provided?

March 12, 2019

By Matthew Scott, JD Candidate (2020)

Summary

The Supreme Court of Canada exercises complete discretion in deciding which cases it does and does not hear. When dismissing applications for leave to appeal, the Supreme Court does not provide reasons. This lack of reasons is grounds for criticism of the Court’s transparency, legitimacy, and leads to potential mischaracterizations of the results of leave applications. But can the current practice be changed? Should it be?

I. INTRODUCTION

The Supreme Court Act[1] states that leave to appeal will be granted where, “with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance…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.”[2] Roughly six hundred applications for leave are submitted each year.[3]

Based on the wording of the Court’s enabling statute, one can infer that only applications deemed to be of “true public importance” are granted.[4] However, logically, the inverse can also be said to be true. If the Supreme Court denies leave to appeal, is it because the case was not of broad or sufficient public importance? Is a rejection of leave to appeal an affirmation of the provincial or federal appellate court’s decision and reasoning? Because the Supreme Court does not provide reasons for its dismissals of leave applications, the consideration of these questions is ultimately an exercise in guesswork.

II. WHY DOES THE SUPREME COURT NOT PROVIDE REASONS WHEN DISMISSING LEAVE APPLICATIONS?

Writing for the majority in R. v. Hinse,[5] Chief Justice Lamer cited two primary reasons for why the Court does not provide reasons for dismissal: first, a scarcity of judicial resources and second, the Court’s ability to exercise discretion over its docket.[6]

Penning reasons for dismissal might constitute a significant strain on judicial resources, as approximately six hundred applications for leave to appeal are submitted each year (around eighty of which are granted).[7] One may reasonably presume that the Supreme Court’s Justices, clerks, and other staff are already operating close to capacity. Requiring approximately five hundred and twenty additional written reasons for denying leave to appeal would be a substantial burden on judicial resources.

With regard to the assertion that requiring reasons would infringe upon the Supreme Court’s control over its own docket, the implication is that if the Supreme Court provided reasons for denying leave, it might be bound by these reasons in the future. While this does not seem inherently problematic, due to potential implications which will be further discussed below, there is certainly justification for the Court to avoid being bound in this context.

III. SHOULD THE SUPREME COURT RECONSIDER ITS PRACTICE OF NOT PROVIDING REASONS?

Many persuasive arguments can be made in favour of the Supreme Court reversing its practice of remaining silent when denying leave to appeal. Providing reasons for dismissing leave applications adds legitimacy to these important decisions. The stakes at Canada’s highest court are undeniable, and the public should be able to scrutinize not only the reasoning in the cases that are heard, but the reasoning for not hearing cases as well. Judicial skeptics would not be alone in appreciating this transparency.

Additionally, the existence of a body of written decisions for denying leave to appeal could plausibly result in fewer overall applications for leave being submitted. If litigants were able to access the reasons of the Supreme Court in denying previous applications, they could more accurately assess their own likelihood of success and proceed accordingly. This would be favourable to both the Supreme Court’s resources and the potential applicant.

Further, written reasons for denial may have a positive impact on the applicant’s perception of the judicial process. Ignoring vexatious applications, parties would not seek leave to the Supreme Court if their case did not have a major influence on them and if they did not feel strongly about its merits. The individual’s faith in the justice system may be greatly diminished if, when being denied leave to appeal, the only rationale provided is the inference they may draw from the wording of the Supreme Court Act.[8] Simply put, that their case is not of sufficient public importance.

A final argument in favour of the Supreme Court reconsidering its current practice is the risk of misinterpretation and misuse of a denied leave to appeal. Without the clarification that reasons would offer, there is the potential for individuals to make assumptions regarding why leave was denied. For example, some may see leave being denied as an endorsement of the appellate court’s decision, which is not always the case. The uncertainty created by a lack of reasons can generate confusion and should be addressed.

IV. PRACTICALITY OF PROVIDING REASONS FOR DISMISSAL OF LEAVE APPLICATIONS

As mentioned above, under this hypothetical framework, the Supreme Court would be required to give reasons for approximately five hundred and twenty denied leave applications per year. This burden is prohibitive. As suggested, the existence of a body of reasons to rely on may eventually lessen the total number of leave applications. However, it is doubtful that this would happen to an extent that would make providing reasons for every denied application viable. It may be suggested that reasons might only be provided in some circumstances, but this alternative raises similar questions of ambiguity as to the reasoning of the Court in deciding when to grant leave applications in the first place.

If reasons were publicly available, the Supreme Court would be expected to rely on the same principles in the same manner, each time. This is the fettering of discretion that the Court is presumably seeking to avoid. Lawyers and legal scholars would undoubtedly make inferences regarding principles based on statements found in written reasons for denials of leave, essentially using the reasons as legal precedent. At face value, neither of these implications are negative. However, for a number of reasons, it is understandable that the Supreme Court would want to avoid these outcomes outside the context of the full consideration of a case.

Although written reasons could be simple, it is likely the burden on judicial resources would still be too high. However, even if this was a plausible alternative, it would have implications that tie in with another negative result. Reasons that would be sufficiently short and simple to address the concern that providing such would be overly time consuming, would often be too short and simple to be distinguished from one another. A body of precedent would be created, and the Supreme Court may be expected to follow their previous reasoning, but these reasons would lack the necessary nuance. The reasons would either be useless for applying parties, or they would cause the Supreme Court to be bound by analysis that is not fully fleshed out.

V. CONCLUSION

The provision of reasons by the Supreme Court when dismissing applications for leave to appeal would be a welcome change to the historic practice. It has the potential to add transparency, legitimacy, and clarity to a process that has important implications. It would also allow applicants to assess their own chances of success with the added knowledge of the disposition of past applications for leave. That being said, the sheer number of applications for leave each year makes this change unlikely to occur. The hypothetical reasons would necessarily be short and superficial, which would make the use of them as precedent problematic.

Currently, as far as applications for leave to appeal to the Supreme Court are concerned, individuals should avoid cynical thinking and believe that the Justices are exercising their discretion appropriately. Thorough reasons would be ideal, but a reversal of the current practice is unlikely.

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[1]           RSC, 1985, c S-26.
[2]           Ibid, s 40(1).
[3]           Supreme Court of Canada, “Important information about seeking leave to appeal to the Supreme Court of Canada” (9 November 2017), online: Supreme Court of Canada <https://www.scc-csc.ca/unrep-nonrep/app-dem/important-eng.aspx>, archived: .
[4]           Supra note 1, s 40(1). See also: R v Hinse, [1995] 4 SCR 597, 1995 CanLII 54 at para 8.
[5]           Ibid.
[6]           Ibid.
[7]           Supra note 3.
[8]           Supra note 1, s 40(1).