In Young v. Noble, 2017 NLCA 48, the Newfoundland and Labrador Court of Appeal clarified the significant, but rarely exercised, power of a provincial appeal court to grant leave to appeal to the Supreme Court of Canada. While appellants generally seek leave to appeal the decision of a provincial appeal court from the Supreme Court of Canada, this decision highlights the power of an appeal court to grant leave to appeal to the Supreme Court of Canada in special circumstances, including cases involving a matter of public interest, important questions of law, cases of local significance, and where the appeal court needs direction or guidance. Ultimately, the Court of Appeal in this case denied leave to appeal to the Supreme Court of Canada. However, the Court shed light on this power in Newfoundland and Labrador and its application by other provincial appellate courts across Canada.
The Test for Leave to Appeal to the Supreme Court of Canada
Pursuant to section 37 of the Supreme Court Act, a single judge of a provincial appeal court has the power to grant leave to appeal to the Supreme Court of Canada if “the question involved in the appeal is one that ought to be submitted to the Supreme Court for decision”.
The Newfoundland and Labrador Court of Appeal will grant leave to appeal to the Supreme Court of Canada if there are “special circumstances”. The Court noted that other provincial appeal courts across Canada take a similarly stringent approach, though they are often expressed in different words. For example, the standards across Canada for granting leave include: in Nova Scotia, in “rare and exceptional circumstances”; in Manitoba, in “the clearest of cases”; and in British Columbia, in “very rare cases in which we are convinced that an issue is raised of such obvious and compelling importance that the litigation calls for the attention of the country’s highest court without regard to competing demands for the court’s attention”.
In Newfoundland and Labrador, the Court of Appeal has held that there may be special circumstances justifying granting leave where a case involves public interest, some important question of law, the construction of statutes, a conflict of provincial and federal authority, or questions of law applicable to the whole country.
Citing Ashmead v. British Columbia, the Court noted that other provinces have emphasized that a provincial court should grant leave where the local significance of the case gives the provincial appellate court an advantage over the Supreme Court of Canada with respect to assessing the importance of the case.
More recently, provincial appellate courts have granted leave to appeal to the Supreme Court of Canada when the court itself needs guidance. For example, where the appellate court feels unable to overturn a precedent that has been rejected in other jurisdictions or where the court is concerned that a recent Supreme Court of Canada decision might be per incuriam, but feels unable to decide the issue itself.
Application in Young v. Noble
In Young v. Noble, the Court of Appeal held that Mr. Young’s arguments did not raise special circumstances that would justify granting leave to appeal to the Supreme Court of Canada. The appeal involved fine procedural points about the application of the rules of the Court of Appeal for Newfoundland and Labrador, which the court held were not issues of great public importance. Further, there was no local dimension that would give the Court of Appeal a comparative advantage over the Supreme Court of Canada in deciding whether to grant leave to appeal. Accordingly, this application for leave to appeal to the Supreme Court of Canada was dismissed.