Seeking leave to appeal asks the court permission to appeal. When appealing any matter to the Supreme Court of Canada (SCC) and when appealing most matters to a provincial court of appeal, the applicant must first seek leave. Because of the overwhelming number of leave applications, the courts can only hear a small number of cases that apply. At the SCC, only 10-20 percent of cases that apply for leave are heard.
It is important to consider timelines when seeking leave to appeal. At provincial courts of appeal, applicants must submit their application within 30 days of a decision being released at a lower court. For applications to the SCC, there is a 60 day requirement.[1]
If you apply for leave outside of these timelines, you must also apply for an extension of time. A reviewing panel of judges may grant an extension; however, there are several factors that it will first consider. These include:
- Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time;
- Whether counsel moved diligently;
- Whether a proper explanation for the delay has been offered;
- The extent of the delay;
- Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and
- The merits of the application for leave to appeal.[2]
Courts have traditionally adopted a generous approach towards granting extensions of time. However, “the ultimate question is always whether, in all the circumstances and considering the factors… the justice of the case requires that an extension of time be granted.”[3] The judge must consider balancing any potential prejudice that would result from a decision to grant or refuse the extension of time. He or she must also consider whether there is a serious issue to be appealed. The case must be arguable before the court.
Many court decisions have the potential to be successfully appealed and, in the ideal situation, all applications for leave would be submitted on time. The courts, however, recognize that some delays are warranted. That said, success when applying for leave to appeal will, arguably, be more difficult when the application is accompanied with an extension for time.
