The vast majority of applications for leave to appeal to the Supreme Court of Canada are heard in writing. Although the Court has the jurisdiction to hear leave applications orally, oral hearings on applications for leave to appeal are a rare occurrence. Before the Supreme Court Act1 was amended in 1988, parties applying for leave to appeal had a right to an oral hearing on an application for leave to appeal. This right was removed in 1988, when the Act was amended to provide that an oral hearing is not available unless the Court orders otherwise pursuant to paragraph 43(1)(c). Despite this rarity, the year 2015 has seen the Court order an oral hearing in three applications for leave: as many as the previous ten years combined.
Prior to the 1988 amendments, Parliament had proposed to abolish oral hearings altogether. This proposal was heavily criticized by many members of the bar. Thus, the government at the time let the bill die on the order paper and reintroduced it with the "clear case" criteria in subsection 43(1) of the Act2.
This subsection provides as follows:
43. (1) Notwithstanding any other Act of Parliament but subject to subsection (1.2), an application to the Supreme Court for leave to appeal shall be made to the Court in writing and the Court shall
(a) grant the application if it is clear from the written material that it does not warrant an oral hearing and that any question involved 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 the 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;
(b) dismiss the application if it is clear from the written material that it does not warrant an oral hearing and that there is no question involved as described in paragraph (a);
(c) order an oral hearing to determine the application, in any other case.
On its face, this subsection seems to provide for oral hearings on all applications except those where the disposition is clear from the written material. In practice, the 1998 amendments led to a drastic reduction in the number of oral hearings on leave applications.
In the past ten years (and aside from oral hearings granted pursuant to subsection 43(1.2), which provides for a mandatory oral hearing in specific criminal cases),3 the Court has only ordered an oral hearing on six applications for leave pursuant to s. 43(1), half of which occurred in 2015.
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Including applications involving criminal matters, the Court has held an oral hearing in the following (non-exhaustive) list of circumstances:
- a point arose concerning the Court's jurisdiction4
- the applicant was seeking corollary relief such as a stay of proceedings required on an urgent basis5
- the Court was concerned about whether there was a good record to explore the issue being raised6
- the Court wanted to ensure that the issues were clear and the appeal was not unfocused7
- where the Court needed to identify the issues it wanted to decide in a complex case where many issues of varying magnitude were raised8
- it was alleged that court of appeal interpreted legislation in a completely inconsistent manner such that Canada was off-side its international treaty obligations9
In the past year, the Court has held three oral hearings on applications for leave pursuant to s. 43(1)(c). Two of these hearings were held consecutively on the morning of November 30 and the third was held in the Spring. In each case, the Court ruled from the bench after a 30-minute hearing and in each case the Court granted leave to appeal.
It is unclear why we are currently seeing an upswing in oral hearings on applications for leave to appeal. Perhaps the Court is faced with increasingly complex cases or perhaps the Court is exploring the value of the oral hearing as a way to ensure it is granting leave to the cases that best fit the statutory critera.. Or perhaps, this year presented the Court with an unusually low number of “clear cases”. In any event, it is a trend worth keeping an eye on.