The Supreme Court of Canada is seen from Gatineau, Que. on Nov. 10, 2023.Spencer Colby/The Globe and Mail
Almost 700 self-represented litigants have asked the Supreme Court of Canada to hear their appeals in the past six years – and not a single one has been granted a hearing, statistics gathered by a Toronto law firm show. The last one to receive a hearing was in 2017.
Roughly one in every four applicants seeking “leave to appeal” – the legal term for asking the court’s permission to hear a case – was self-represented over that period, according to information compiled by lawyer Paul-Erik Veel, as part of a program of data-driven decisions at the law firm Lenczner Slaght.
And applying for a hearing is not free; apart from the registry filing cost of $75, the losing side may be ordered to pay costs of $800 to $2,000 or more to the winning side, says the Supreme Court website, which contains a page of advice to the self-represented. (The first piece of advice: seek legal counsel.)
There is but a slender hope of being heard by the court: From 2012 to 2017, three self-represented litigants were granted a hearing, according to information the court provided to The Globe and Mail.
The hope did not take them very far. Each lost the case unanimously. (Two of the three were represented by legal counsel at the Supreme Court hearing.)
And in the largest study on the subject, by Donald Netolitzky, a court employee in Alberta, just eight were granted a hearing over a quarter-century, ending in 2021. Two actually won their cases.
Why are self-represented litigants failing almost entirely at the Supreme Court?
According to both Mr. Veel and Mr. Netolitzky, who have conducted separate studies, it is primarily a failure to understand the court’s role. The court controls what it hears, for the most part. It takes on cases it believes to be of national importance. It seldom takes on cases simply to correct errors at lower courts.
“There’s only a certain type of case where it’s worth seeking leave to appeal,” Mr. Veel said, “and I think most self-represented litigants don’t understand that distinction.”
What does the Supreme Court look for? Novel points of law; constitutional challenges to legislation, common law, or government practices; or issues on which provincial appeal courts have made conflicting decisions. Also, Indigenous rights and challenges to federal statutes, or multiple provincial statutes, draw attention. (Mr. Netolitzky cited the late Supreme Court justice John Sopinka as the source of this information.)
And what kind of issues do self-represented litigants tend to bring forward? Mr. Netolitzky reviewed about 120 filings in 2017 by self-represented litigants at the Supreme Court. As he explained it in a study published two years ago in the Alberta Law Review – titled The Grim Parade – they tend to be raising points of justice that are personal to them, as opposed to points of law that might interest the top court.
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Some examples: a litigant sought the return of their pet dog from animal-protection authorities; another litigant was a startup manufacturer driven into bankruptcy over its failure to pay a $50 licence fee. Nearly half felt the lower courts were biased against them.
And the Supreme Court may reinforce that sense of not being heard; it does not explain why it dismisses or accepts a request for an appeal hearing, because it believes its silence is the best way to preserve its absolute discretion.
Mr. Netolitzky says the population of self-represented litigants at the Supreme Court is quite different from the tens of thousands who represent themselves at lower levels of court, often in family-law matters because they cannot afford legal counsel.
Not only are the ones at the Supreme Court much less likely to be filing family law appeals, they are much more likely to have been previously involved in abusive or repetitious litigation.
The poor record at the Supreme Court continues despite free legal counsel being available to those mulling an appeal. Pro Bono Ontario has a free, countrywide service connecting litigants with lawyers, including former Supreme Court clerks, knowledgeable in the process. The Supreme Court website provides a link to this service.
If the lawyers consider that there’s a reasonable chance of being granted a hearing, they can become involved in preparing materials. (The case would be recorded as having legal representation.)
In the past year, Pro Bono Ontario scrutinized about 20 such requests and offered help to just one, whose leave request was ultimately dismissed, says Matt Cohen, director of legal services until his departure last month.
“There are some needles in a haystack where the lawyers conclude that there is a reasonable chance of getting leave,” he said.
The last self-represented litigant to be granted a hearing by the Supreme Court was in 2017. It was an unusual case. The litigant had lost his job and was fighting for employment insurance benefits, and had to show he had been an employee, not self-employed. But the issue morphed into one about Canada’s commitment to bilingual courts when a trial judge prevailed on French-speaking witnesses to speak in English, rather than delay the trial for an interpreter.
The self-represented litigant, Kassem Mazraani of Quebec, had won in the Tax Court of Canada on the employment issue, but his victory was tossed out by the Federal Court of Appeal on the bilingualism issue.
“I strongly refuse to be a part of the language issue,” Mr. Mazraani wrote in his filing to the Supreme Court, seeking an appeal hearing. “It is a political issue and I can’t afford it.” When the Supreme Court agreed to hear his case, he retained a lawyer.
The Supreme Court ruled 9-0 that the French-speaking witnesses had had their rights denied. It sent Mr. Mazraani’s case back to the Tax Court. This time, he lost.
All applications for leave to appeal at the Supreme Court of Canada are sent to all the judges of the court, and the decisions are taken by the court as a whole. In a typical year, the court receives 400 to 600 applications, and agrees to hear just 30 to 40 of them.
“They have a large team at the court, including in-house counsel and Supreme Court law clerks, to sift through leave applications,” said Eugene Meehan, a lawyer specializing in the Supreme Court. “It is a thorough and comprehensive process.”
The hundred or more filings from self-represented litigants represent a large burden on the court’s time and resources, Mr. Netolitzky says in his studies.
In Australia, by contrast, panels of seven judges hear leave-to-appeal requests, but, as of November, just two judges hear requests from unrepresented litigants – an attempt to minimize the perceived burden.
Editor’s note: A previous version of this article said incorrectly that the requests are reviewed by a panel of three judges, and that some are circulated to all nine and will go to a hearing if four want the case to be heard. In fact, all applications for leave to appeal at the Supreme Court of Canada are sent to all the judges of the court, and the decisions are taken by the court as a whole. This version has been updated.