In a Supreme Court of Canada motion decision rendered on May 15, 2014 in Stubicar v. Canada, Rothstein J. dealt with an unusual issue of jurisdiction.

Following dismissal of her application for leave to appeal to the Supreme Court of Canada, Ms. Stubicar sought reconsideration of that decision. Under Rule 73(1) of the Rules of the Supreme Court of Canada, no reconsideration shall occur unless “there are exceedingly rare circumstances in the case that warrant consideration by the Court.” A Rule 73 motion must be filed with the Registrar and include an affidavit setting out the exceedingly rare circumstances and an explanation of why the issue was not previously raised. Rule 73(4) provides that if the affidavit does not set out the exceedingly rare circumstances, the motion “shall not be submitted to the Court.” The Registrar did not accept the Rule 73 motion as it failed to reveal the necessary exceedingly rare circumstances.

Ms. Stubicar subsequently sought to file a motion to a judge under Rule 78 to review the Registrar’s decision. The Registrar returned the Rule 78 motion materials because the motion for reconsideration had been appropriately reviewed in accordance with Rule 73. Ms. Stubicar then filed a motion for directions seeking an order directing the Registrar to accept for filing her Rule 78 motion. Ms. Stubicar contended that the Registrar’s refusal to accept her Rule 73 motion constituted an order of the Registrar subject to review by a judge under Rule 78.

Rothstein J. dismissed the motion for directions. He stated that the Registrar’s decision to refuse for filing a Rule 73 motion is a function of his authority under Rule 8(2), which allows the Registrar to refuse a document that does not comply with the Rules. Rothstein J. further held that a decision of the Registrar under Rule 73(4) is not an order subject to review under Rule 78. He stated that as “Rule 73(4) is intended to limit access to the Court where minimum standards are not met, allowing for review of Rule 73(4) decisions of the Registrar would be contrary to the intent of the scheme. Accordingly, a decision of the Registrar under Rule 73(4) to not submit an application to the Court is not reviewable by a judge under Rule 78” (para. 9)