New Rules of the Supreme Court of Canada for 2021
Effective January 27, 2021, amendments to the Rules of the Supreme Court of Canada (Rules) and the Guidelines for Preparing Documents to be Filed with the Supreme Court of Canada (Guidelines) will come into force. The amendments continue the project of simplifying the Rules and improving access to justice before the top court. The key changes include removing the requirement to deal with the Registry through an Ottawa Agent, simplifying the process for applying for leave to appeal, and reducing the number of paper copies for leave to appeal filings. The amendments to the Rules and Guidelines include, but are not limited to, the following changes:
(1) Making the Ottawa Agent optional
Prior to the amendments, parties to appeals and references were required to deal with the Registry through an Ottawa Agent (Rule 16(1)), i.e., a lawyer practising in the National Capital Region. This will now be optional for all proceedings. Notwithstanding this change, we anticipate that many parties to appeals will continue to use an Ottawa Agent for procedural issues before the Court. Ottawa Agents provide significant value given their expertise in Supreme Court procedure.
(2) Simplifying process for applying for leave to appeal
The paper filing requirements have been reduced for applications for leave to appeal. Prior to the amendments, parties were required to file the original and five paper copies of the application, the response, and the reply (Rules 26-28). This has been reduced to the original and two paper copies. The requirement to file electronic versions remains, with some revisions. Rather than filing specific parts of the leave application electronically, the applicant must now file an electronic version of the entire application (with the reasons from the courts below by hyperlink, if available).
The amendments also remove the existing Rule which allowed an applicant to file an affidavit in support of the leave application (Rule 25(1)(d)). The replacement Rule 25(1)(d) now only contemplates filing transcripts or evidence from the record filed with the court appealed from.
Further, the applicant is no longer required to file an affidavit of service in respect of their leave application. Instead, the applicant is to file a read or delivery receipt for the email serving the leave application on the respondents and interveners, and (if applicable) confirmation that the notice of application was sent to any party in the lower court not named in the style of cause (Rule 26(2)).
Similar amendments have been made in respect of applications for leave to cross-appeal (Rules 29 to 31) and motions for the reconsideration of leave applications (Rule 73).
(3) Revising the notice of appeal for appeals as of right
For appeals as of right under the Criminal Code, the amendments add to the documents which must be attached in the schedule to the notice of appeal (Rule 33(1)(b)). The schedule must now include the judgment and reasons for judgment, if any, of the court of first instance, or the notation on the indictment (or equivalent). The schedule must continue to include the judgment and reasons for judgment of the court appealed from, which were already required prior to the amendments.
(4) Signing judgments by facsimile
Judgments of the court no longer need to include an original signature. Under the amendments, judgments are deemed to be signed provided they bear a facsimile of a judge’s signature (Rule 79).
(5) Amending reasons for judgment
Parties may now make a motion to a judge seeking to have the reasons for judgment amended if they contain an error arising from an accidental slip or omission, or if they do not accord with the judgment or reasons for judgment as delivered by the Court in open court (Rule 81). This expands the existing Rule 81, which previously applied only to judgments (not reasons for judgment). However, the amendments remove the ability of the parties to make a request on consent to the Registrar to amend a judgment. Even on consent, the motion must be made to a judge of the Court.
The amendments also add a new rule allowing the Court or a judge to amend, if necessary, the judgment or reasons for judgment at any time on the Court’s or judge’s own initiative (Rule 81.1).
The Court’s “Guide to the 2021 Amendments to the Rules of the Supreme Court of Canada”, which provides a plain language explanation of the changes to the Rules/Guidelines can be found here.