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Trust, not reasons, required in leave application process

A response to Philip Slayton
|Written By Jean-Marc Leclerc
Trust, not reasons, required in leave application process

Should the Supreme Court of Canada give reasons for denying applications for leave to appeal? In the May edition of Canadian Lawyer, Philip Slayton in his Top Court Tales column said it should. Because the Supreme Court does not give reasons, he said, no one knows why leave is denied. There are two problems with this, he explained. First, the granting or denial of leave provides lawyers with no guidance for future cases. Second, for any individual litigant, there may be a perceived lack of justice because he or she simply does not know the reasons for the court’s decision.

He concluded that requiring the court to explain its reasons for denying leave in “one page or two” in about 500 cases every year would not be onerous, especially because the total number of successful applications for leaves to appeal have dropped dramatically to somewhere around 60 from about 100 annually, leaving the judges with “less to do.”

At a certain level, there is an innate appeal to requiring the court to give reasons for decision for denying leave. Other courts give reasons, explaining why there is no conflicting decision or whether the appeal involves a serious question of general importance. If other courts can do this, why not the Supreme Court? The SCC itself has emphasized in many decisions the importance of giving reasons for decision, concluding that the failure to give reasons can result in an error of law requiring a new trial.

But should the same rules apply to the Supreme Court of Canada? The problem with this is inherent in the broad statutory test for granting leave, which allows the court to grant leave if it “is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed fact and law involved in that question, one that ought to be decided by the Supreme Court.” As Slayton explains in his article, it is indeed a “ponderous and vague formula” that “gives the court almost unlimited discretion to accept or reject an application.” And that is the basic problem that would make it very difficult to require the court give reasons for denying leave.

One of the best sources of information for understanding the issues the court considers in granting or denying leave is a speech that justice John Sopinka gave to the litigation department of Tory Tory DesLauriers & Binnington (as Torys LLP was then known) in 1997. To illustrate its importance, when I clerked at the Supreme Court, a copy of that speech was included in the training materials given to all law clerks. Thankfully, copies of the speech have been republished in Henry Brown’s textbook Supreme Court of Canada Practice, giving guidance to everyone on the applicable principles.

In his speech, Sopinka explained that the court has an “unfettered discretion as to when leave should be granted.” He said: “We are not a court of error and the fact that a court of appeal reached the wrong result is in itself insufficient. This is still the case if the court of appeal has misapplied or not followed a judgment of this Court.” The court will not grant leave unless the failure to follow its decisions becomes “an epidemic,” he explained.

Most lawyers would agree this is a valid reason for the Supreme Court to deny leave to appeal. It does not grant leave simply because there is an error of law. But for any litigant, likely having spent many years and lots of money to arrive at the leave to appeal stage, what would his or her reaction be to being told by the Supreme Court that although it believes there was an error of law in the decision, leave to appeal was denied because there is no issue of public importance? It is almost certain that person would feel a denial of justice, rather than an affirmation.

The example illustrates another important reason why it is impractical to require reasons for denying leave. If part of the court’s reasons for denying leave involved its view that there was no error of law, or if the court denied leave even though there was an error of law, part of the obligation to give reasons would be a requirement to explain why.

Like it or not, those reasons would become part of Canadian law. Scrutinized by lawyers and judges. That could mean the Supreme Court would be required to make 500 additional decisions every year on important principles of law in cases in which leave is denied. Given the new importance of these denial decisions, it is something that would require the input and involvement of the entire court and their law clerks, adding complexity and delay to the leave to appeal process.

As Slayton says, “justice is often in the details.” In light of this, it is also unlikely that denying leave could be done in one or two pages, as he suggests. More fundamentally, providing reasons to explain why leave to appeal is denied based on the existence or non-existence of an error of law, practically speaking, would transform the Supreme Court into a court of error, rather than its broader role involving cases of public importance.

Slayton concludes that because the court has granted leave in fewer applications, it has a lighter workload than in other years in which it granted leave more frequently. That is a difficult conclusion to confirm. For example, while the court did grant leave to appeal 84 times in 2000 and only 51 times in 2008, there were simply more applications filed in 2000 (642) than there were in 2008 (528). On a percentage basis, the difference between the two years is only about three per cent (13.1 per cent of applications granted in 2000, versus 9.7 per cent in 2008). It is difficult to conclude from this that the judges have “less to do.”

In a perfect world, the Supreme Court would give reasons for everything it does. Complete transparency. Because this is not practical, inherent in the leave process is a certain amount of trust; trust that the court will seriously consider each and every application and do what it believes is right. There is nothing to suggest the trust is unwarranted. And by understanding the good reasons for which it is impractical for the Supreme Court of Canada to draft reasons in leave applications, there should be no sense of denied justice.

Jean-Marc Leclerc is a partner at Osler Hoskin & Harcourt LLP in Toronto. From 1999-2001, he was a law clerk at the Federal Court of Appeal for Justice Edgar Sexton and at the Supreme Court of Canada for justice John Major.

  • CEO

    GP Fuller
    A process is incomplete without reasons, but reasons can be given at any level. A decision to deny appeal means: accept the reasons of the court below. However, it is proper in a democracy to question the legality of decision making by anyone with an obligation to facilitate Justice.