“Public Importance”: The Gateway to the Supreme Court of Canada

“Public Importance”: The Gateway to the Supreme Court of Canada

Introduction

Like the proverbial road to heaven, the way to the Supreme Court of Canada is narrow. Most litigants must apply for leave to appeal a case to the country’s highest Court.[1] Hundreds of applications are filed each year, and the Court grants less than 10% on average.[2] Parties can improve their chances of success by studying how the Supreme Court separates the wheat from the chaff. This is no easy task when the Court has crafted no bright-line rule and rarely gives a reason for granting or denying leave. This bulletin aims to assist would-be appellants with an overview of the legislative framework governing applications for leave to appeal and of other sources that provide insight into the criteria considered by the Court.

The Supreme Court Act and the Public Importance Test

The Supreme Court’s discretion to grant or deny an application for leave to appeal is broad and absolute. Section 40(1) of the Supreme Court Act provides that the Court may grant leave if:

[T]he Supreme Court is of the opinion that any question involved [in the case] is, by reason of its public importance or the importance of any issue of 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.[3]

In sum, to reach the highest court of the land, a case must present a question of such importance that Supreme Court intervention is warranted. Although Section 40(1) lists public importance and legal importance separately, it is difficult to imagine a case that would satisfy one criterion and not the other. Generally, the two are treated as one requirement and the whole test is summed up by the term “public importance”.[4]

The Court has declined to formulate a specific bright-line rule from these general criteria. Nesbitt J. explained why in the early twentieth century case Lake Erie and Detroit River Railway Company v. Marsh:

Cases vary so widely in their circumstances that the principles upon which an appeal ought to be allowed do not admit of anything approaching to exhaustive definition. No rule can be laid down which would not necessarily be subject to future qualification, and any attempt to formulate any such rule might, therefore, prove misleading. The court may indicate certain particulars the absence of which will have a strong influence in inducing it to refuse leave, but it by no means follows that leave will be given in all cases where these features occur.[5]

For this reason, case law on the public importance test is scarce. We review below the few cases and other sources that expand on the principles that guide the Court in deciding which cases to hear, with an eye to common themes that may guide would-be appellants today.

When Leave Is Unlikely to Be Granted

We begin by reviewing some situations in which the Court is unlikely to grant leave to appeal.

1.     The Court Is Not a “Court of Error”

The Supreme Court will not grant an application for leave solely to correct an incorrect decision, even one misapplying Supreme Court precedent. Typically, the Court will intervene to course correct the lower courts only when errors reach “epidemic” proportions or otherwise spin “out of control”.[6] However, the Court may take into account whether “the decision sought to be appealed is alleged to establish a precedent that is unworkable in practice, or otherwise is likely to have a problematic impact of jurisprudential importance.”[7]

2.     Relevance

The question at issue must be “germane to the disposition of the case”,[8] because the Court does not “ordinarily deal with abstract or hypothetical matters.”[9]

3.     Questions of Fact

Cases turning on an issue of fact “rarely get through the screening process”.[10] This is especially so where the factual record is insufficiently developed or the trial judge did not make a relevant determination of fact.[11]

4.     Development of the Law

When new issues arise out of a recent Supreme Court decision, the Court will not “immediately rush in to decide all subsidiary issues”. Instead, it will allow the lower courts time to respond and apply the new Supreme Court precedent before weighing in again.[12]

5.     Legislative Intervention

Matters addressed by, or soon to be addressed by, the legislature are not favoured for Supreme Court review.[13] Sopinka J. reasoned that such matters have lost their public importance, but this principle could also be justified on grounds of parliamentary sovereignty or the conservation of judicial resources.

6.     The Lower Court “Plainly” Got It Right

A demonstration of importance does not necessarily make for a successful application. Even a case presenting issues of both “great public interest” and legal importance may be turned away if the Court considers that “the judgment is plainly right.”[14] This situation is unlikely to arise often; the rightness of a judgment would have to be plain indeed to be manifest before an appeal is heard.

Matters of Public Importance

Assuming a case does not fall into one of the above situations, it remains to consider whether the issues to be heard on appeal are of sufficient public importance to warrant Supreme Court intervention. The Supreme Court has said that the “single most important criterion determining the success or failure of a leave application is the public importance of the issues it raises”.[15] But what does “public importance” mean? The two most important elements that arise in case law and other sources appear to be (1) the broad impact of the question at issue; and (2) ensuring a uniform jurisprudence. The Court may consider both policy and jurisprudence in evaluating public importance.[16]

Consider first the breadth of the question raised by the case. An issue of public importance is one that “goes beyond the interests of the immediate litigants” and is “of interest to Canadians generally.”[17] Cases that raise issues with national or widespread impact are more likely to be found of public importance, and the more severe the impact, the more likely it is that the application will be granted.[18]

Some areas of law generate issues with widespread effects more frequently than others. Cases related to constitutional and administrative law often do so. Broad impacts arise less often from disputes sounding purely in property, tort, family, or contract law.[19] Such disputes are generally fact-driven and arise from events of concern only to the individuals involved. As a result, they tend to raise issues of importance only to the parties involved.[20]

As to uniformity, Marsh teaches that the Court interprets Section 40(1) in light of its mandate “to be a guide to provincial courts in questions likely to arise throughout the Dominion[,] . . . to speak with authority for the Dominion as a whole and, as far as possible, to establish a uniform jurisprudence”.[21]

Cases raising constitutional questions often have national impact.[22] At least three constitutional issues have been expressly held to meet the public importance test, concerning matters such as Canadians’ access to court proceedings, the operation of constitutional principles in the Canadian judicial system, the distribution of federal and provincial powers, and the independence of the judiciary:

• R. v. Sullivan: Whether and to what extent a declaration of unconstitutionality issued by a superior court pursuant to section 52(1) of the Constitution Act, 1982 binds courts of coordinate jurisdiction.[23]
• Canadian Broadcasting Corp. v. Manitoba: Whether a court has jurisdiction to render, vary, or vacate orders that limit the “constitutionally-protected” open court principle after a case has ended.[24]
• Therrien (Re): The jurisdiction of the federal courts in relation to the procedures for disciplining and removing provincially-appointed judges under the Courts of Justice Act, and the constitutionality of section 95 of that statute in light of the constitutional principle of judicial independence.[25]

Other questions that may reach the public importance threshold due to concerns about maintaining uniformity include the interpretation of a federal statute or a provincial statute that exists in several provinces;[26] conflicts between the Courts of Appeal;[27] conflicts between provincial and federal law;[28] common law questions applicable across the country;[29] novel points of law;[30] and matters relating to aboriginal rights.

The Bottom Line

An application for leave to appeal a decision to the Supreme Court is more art than science. The Court’s unfettered discretion and general disinclination to provide specific reasons for granting or denying leave creates a substantial degree of uncertainty for litigants and counsel. Past decisions and commentary from the Justices and other authorities suggest that the two most important factors in determining public importance are the uniformity of our jurisprudence and the breadth of impact of the question at issue. Applicants who would have the ear of the Court should emphasize these aspects of their case.

[1] Eugene Meehan, Jeffrey Beedell, Marie-France Major, Supreme Court of Canada Manual: Practice and Advocacy (Toronto: Thomson Reuters Canada, 2020). Online: Westlaw Canada (date accessed 1 February 2024), s 4:2 (“SCC Manual”). This bulletin concerns applications for leave to appeal civil cases to the Supreme court under Supreme Court Act s 40(1). It does not address cases in which appeal is as of right, criminal cases, or cases seeking leave under other statutes, for example the Bankruptcy and Insolvency Act, RSC 1985, c B-3.
[2] Supreme Court of Canada, “Statistical Summary 2013 to 2022” (last modified March 3, 2023), https://www.scc-csc.ca/case-dossier/stat/years-annees-eng.aspx.
[3] Supreme Court Act, RSC, 1985, c S-26, s 40(1). This substantive requirement for obtaining leave to appeal does not exhaust the Court’s checklist. Would-be appeals must also clear several procedural hurdles laid out in Section 40(1), which are not discussed here.
[4]The third category, describing cases that are “otherwise significant” has never been discussed by the Supreme Court and is best understood as a catch-all. It is difficult to conceive of an issue that would be significant for some “other reason” and not also of either public or legal importance.
[5] 1904 CarswellOnt 798, 35 SCR 197, at 200 (“Marsh”).
[6] D. Lynne Watt, Graham Ragan, Guy Régimbald, Jeffrey Beedell, Matthew Estabrooks, Supreme Court of Canada Practice, (Toronto: Thomson Reuters Canada, 2021), pt 4 at SCR 21, s 1.2, quoting Sopinka J., “The Supreme Court of Canada” (10 April 1997) (“SCC Practice”).
[7] Aecon Buildings v. Stephenson Engineering Ltd, 2011 SCC 33, at para. 4 (Binnie J.).
[8] Ibid.
[9] SCC Practice, s 1.2, quoting Laskin C.J., “Address to the Empire Club of Toronto” (1981).
[10] SCC Practice, s 1.2.
[11] SCC Practice, s 1.2, quoting Sopinka J., “The Supreme Court of Canada” (10 April 1997). For some exceptions to this rule, see SCC Practice, s 1.2 under the subheading “Examples of Leave Applications”.
[12] SCC Practice, s 1.2, quoting Sopinka J., “The Supreme Court of Canada” (10 April 1997)
[13] Ibid.
[14] Marsh, at 200; SCC Manual, s 4:3, quoting Sopinka J. Justice Sopinka cites as an example R. v. Haig (1970), 1 C.C.C. (2d) 299, [1971] 1 O.R. 75.
[15] R. v. C.P., 2021 SCC 19, at para. 196, quoting SCC Manual (loose-leaf), at p. 3-3.
[16] Aecon Buildings v. Stephenson Engineering Ltd, 2011 SCC 33, at para. 4 (Binnie, J.).
[17] SCC Practice, s 1.2, quoting Dickson C.J., “Address to the Canadian Bar Association” (1983).
[18] SCC Manual, s 4:3.
[19] SCC Practice, s 1.2.
[20] There are of course exceptions, especially where cases raise novel questions related to a legal standard. See for example, Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021 (holding that pure economic loss is recoverable in tort if there is negligence, foreseeability, and sufficient proximity); Semelhago v. Paramadevan, [1996] 2 S.C.R. 415 (deciding the principles applicable to the assessment of damages in lieu of specific performance where the plaintiff owns a unique asset).
[21] Marsh, at 200.
[22] SCC Practice, s 1.2; Marsh, at 200; SCC Manual, s 4:3, quoting Sopinka J.
[23] 2022 SCC 19, at para 40.
[24] 2021 SCC 33, at paras 1-3.
[25] 2001 SCC 35, at paras 1, 26-32.
[26] Marsh, at 200.
[27] SCC Manual, s 4:3, quoting Sopinka J.
[28] Marsh, at 200.
[29] Ibid.
[30] SCC Manual, s 4:3, quoting Sopinka J.

By Scott Maidment, Emily Hush and Fernanda Martins

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

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