With the exception of cases where there has been a dissent in the court of appeal, the Supreme Court of Canada will not hear an appeal absent a successful leave to appeal application. A party bringing a leave application bears the onus of showing why the case deserves to be heard by our country's highest court. Leave will only be granted if the Court decides that the case raises an issue of national importance.

The Court's rules require that, absent a successful motion to extend time, the leave application be filed within 60 days of the judgment in the appeal court below (oddly enough, July and August do not count in the computation of time, a throw-back to the days when nothing much happened in the summer months). This deadline is not always easy to meet, most especially where the client has limited financial resources and there is delay in obtaining legal aid. In past times, some counsel didn't worry too much about filing late because most delays were countenanced by the Supreme Court. As long as a motion for extra time was filed along with the (already late) leave application, the Court would grant the request for more time and render judgment on the application.

But a stark reminder that the old ways are not always good ways came last week when the Supreme Court of Canada dismissed a motion to extend time in Garry J. Hart v. Her Majesty the Queen (Ont. C.A., November 12, 2002) (31433). As with almost all such motions, no reasons were provided. But the Hart decision is surely the continuation of a "get tough" trend established by the Court almost a year ago in a case called Roberge. In Roberge the Court issued written reasons - a real rarity - explaining that the proffered explanations for filing late were not sufficient and denying the motion for extra time. In Roberge the delay was short (only 4 months) and was the fault of counsel (not the client), and the Crown had been informed of the intention to file leave well before the 60-day period expired. It used to be that on this sort of record the Court would have allowed the extra time requested. Roberge announced that the old days were over.

The moral of the story is that defence counsel can no longer assume that motions to extend time to file for leave will be granted. Counsel must either meet the 60-day deadline or bring a motion to extend before the deadline has expired. A third option is to explain the reasons for the delay to the Crown as soon as possible and to ask the Crown to consent to a motion to extend time. The Crown will usually do so provided that the reasons are valid. The motion to extend can then be brought outside the 60-day period, at the same time as the leave application is filed. This third option will likely suffice if the reasons for delay are good but there is always a risk that the motion will be denied. Crucially, the Court is not bound by an agreement between parties to extend time.

To read the Roberge case click here.