The Supreme Court of Canada’s Rules are changing

On January 27, 2021, amendments to the Rules of the Supreme Court of Canada (the “Rules”) will take effect.[1] The amendments will apply to all cases, including filings as of that date in any ongoing cases. The principal changes introduced by the amendments are to eliminate the requirement to have an Ottawa agent for appeals, simplify the leave application process, and facilitate the electronic filing of materials.

Ottawa agents

Parties to an appeal will no longer be required to engage an “Ottawa agent” (a lawyer practising in the National Capital Region) to file materials and communicate with the Registry on their behalf. This amendment allows for a more direct process, with fewer lawyers involved. Parties may still choose to engage an Ottawa agent at any stage of the process (e.g., at the leave stage, or after leave has been granted).

Leave applications

In most civil cases, an applicant must seek and obtain permission (“leave”) to have their case heard by the Court or to intervene in an appeal brought by another party. The following amendments seek to simplify and streamline this process:

  • Affidavit not required. An applicant will no longer be required to file an affidavit in order to rely on evidence from the court below in support of their leave application. The rule change means that an application for leave to appeal must consist only of a notice of application, the lower court or tribunal decisions, and a memorandum of argument explaining why the Court should grant leave. If an applicant wishes to rely on transcripts or exhibits from the record filed in the court below – to lay the factual foundation for the application and explain why the Court should grant leave, for example – such materials may be included in the leave application directly, without having to be attached to an affidavit.
  • Electronic delivery. In addition to filing and serving their leave application on all other parties within 60 days after the date of the decision from which leave to appeal is sought, an applicant seeking leave to appeal will be required:
    • to send an electronic version of the full application to all other applicants, all respondents, and all interveners by e-mail, and to file a read or delivery receipt with the Registry; and
    • to send a copy of the notice of application to any party in the court appealed from who is not named in the style of cause, and to file confirmation with the Registry that the notice was sent.

Applicants will no longer be required to file an affidavit with the Registry attesting to the names and addresses of these other persons.

  • Fewer paper copies. Parties will now be required to file fewer paper copies of leave materials or materials seeking reconsideration of leave decisions with the Court.

Other changes

  • Amending judgments. Parties wishing to amend a judgment or reasons for judgment can no longer make a request to the Registrar, but must now make a motion to a judge. The Court or a judge is also empowered, if necessary, to amend the judgment or reasons after the judgment’s release.
  • Appeals as of right. The notice of appeal in an appeal as of right (e., an appeal in a criminal case in which a judge of the Court of Appeal has dissented on a point of law) must now contain a schedule including the information or indictment and the judgments below.
  • Forms. The Court has updated its forms to reflect the amendments.
  • Guidelines. The Registry will update its Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada (Print and Electronic) to reflect the amendments.

We can help

Our National Appellate Litigation Group regularly represents litigants before the Supreme Court of Canada. If you have questions about our appellate practice or our experience in Supreme Court matters, please contact Brandon Kain or Adam Goldenberg.

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[1] The amendments were announced by the Registrar and published in the Canada Gazette on January 6, 2021, and are summarized in a short guide prepared by the Registrar.

Supreme Court of Canada agent leave application filing amendments

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