An Absence of Reason: Why the Supreme Court of Canada Should Justify Dismissing Applications for Leave to Appeal

Article excerpt

Abstract

The Supreme Court of Canada chooses which cases it will hear and does not give reasons that justify these choices. According to its enabling statute, the Supreme Court grants a litigant leave to appeal a decision if it "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."

This paper explores the silence surrounding the leave to appeal process and concludes that it is inconsistent with the Court's own attitude toward transparency and justification in decision-making. One way of gaining insight into its decision-making process would be for the Court to provide reasons justifying its dispositions in leave to appeal applications. I conclude that, given the impact the leave to appeal process has on litigants and the legal system more generally, the Supreme Court should begin to issue reasons as part of this process.

OVERVIEW

I.   THE LEAVE TO APPEAL PROCESS

II.  INFORMED SPECULATION: WHY DOES THE COURT GRANT
     AN APPLICATION FOR LEAVE TO APPEAL?

III. THE REASONS THAT THE COURT DOES NOT GIVE REASONS
     "Burden on Scarce Judicial Resources"
     "An Undue Fetter on Discretion"

IV.  WHY THE SUPREME COURT SHOULD ISSUE REASONS
     Impact on Individual Litigants
     Public Accountability for Judicial Decisions
     Reasons and The Rule of Law

V.   THE IMPLICATIONS OF INTRODUCING A REASONS REGIME

VI.  CONCLUSION

OVERVIEW

The Supreme Court of Canada chooses which cases it will hear and it does not give reasons that justify, its choices. According to its enabling statute, when the Court dismisses an application for leave to appeal, it means that the issues in the case were not of sufficient public importance to require the Court's opinion. (1) It is difficult to state with any greater precision what this standard means, given that the Court issues no reasons or more specific guidelines explaining why certain cases fail to meet this Standard. With such an enigmatic benchmark for granting leave, there is understandable uncertainty about how the Court chooses which cases it will hear.

The following example illustrates the potential for misunderstanding: the Ontario Human Rights Commission's (the "OHRC") web site provides its visitors with summaries of significant anti-discrimination cases. The OHRC describes a 2001 case where leave to appeal was refused as follows: "the [Ontario] Court of Appeal's decision was supported by the Supreme Court, setting a precedent around the appropriate use of reinstatement as a remedy in human rights cases." (2) Yet, unlike what the OHRC description suggests, the Supreme Court had not actually heard the case and rendered a judgment supporting the Court of Appeal's reasons. Rather, an application for leave to appeal had been filed and dismissed. (3) The Supreme Court neither supported nor affirmed the Court of Appeal's reasons. This example is not meant as a criticism of the OHRC's description, but is included to highlight an understandable mischaracterization that results from an ambiguous leave process.

In this paper, I argue that the level of ambiguity surrounding the leave to appeal process is neither necessary nor acceptable. I explore one possible solution that Professor Lorne Sossin has suggested: the Court could provide reasons justifying its dispositions in leave to appeal applications. (4) In the first part of the paper, I examine the relationship between the leave process and the Court's function and speculate as to why the Court grants leave to appeal in certain cases. I question why the Court does not give reasons and conclude that, given the impact of the leave to appeal process on litigants and the Canadian legal system, the Supreme Court should issue reasons as part of this process. The price of this recommendation may be substantial, but it is a price worth paying. …