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Leave to Appeal to Divisional Court

As with any application, the court has the jurisdiction to grant the relief sought, dismiss, adjourn or direct a trial, in whole or in part, and with or without terms. In some cases there are automatic rights to appeal. In others, permission or leave to appeal must be obtained.  Under Rule 62.02 of the Rules of Civil Procedure, leave to appeal an interlocutory order to the Divisional Court must be obtained.

This jurisdiction applies to applications to pass accounts in accordance with Rule 38.10(1)(a) of the Rules of Civil Procedure. Specific powers of inquiry on an application to pass accounts arise from the Estates Act, Section 49(1) through (10). The Estates Act, Section 10 addresses appeals from a passing of accounts which directs the appeal of a judgment exceeding $200 in the jurisdiction of the Divisional Court. For many years, motions for leave to appeal interlocutory orders were determined following an oral hearing by a single justice. However, as of July 1, 2017, rule 62.02 of the Rules of Civil Procedure requires that leave to appeal to the Divisional Court shall be obtained from a panel of that court, rather than by a single judge. As such, a motion for leave to appeal must now be filed at the Divisional Court Office in Toronto before it is “heard” in writing by a panel of three Divisional Court judges.

Leave to Appeal to the Supreme Court of Canada

The Supreme Court of Canada (the “SCC”) is the court of last resort (or the highest court) in Canada. As the final general court of appeal it is the last judicial resort of all litigants. The SCC’s jurisdiction embraces both the civil law of the province of Quebec and the common law of the other nine provinces and three territories. As it is a general court of appeal, the SCC can hear cases in all areas of the law.

The test for leave to appeal to the SCC is set out in section 40(1) the Supreme Court of Canada Act (“the Act”) and reads as follows:

40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.

Matters that the SCC generally hear often transcend the interests of the immediate parties and do not turn only on the facts of the case.  For example, in many of the cases that come before it, the SCC must determine the legal meaning of a provision of a statute, and its decision is likely to have an impact on society as a whole.

The focus of one seeking leave to appeal from the SCC should primarily be “to convince the court that granting leave will allow the appellate court to make a decision that will entail an important legal statement and that the case therefore deserves a precious spot on the appellate court’s docket.”1 In estate litigation cases, appeals are heard by the SCC only if leave to appeal is given. The first step, therefore, is to file a complete written application for leave to appeal (leave application) with the Court. Pursuant to section 58(2) of the Act, an application for leave to appeal must be served and filed within 60 days of the date that a judgment is pronounced. However, Section 59(1) of the Act and Rule 6 of the SCC rules state that a judge can exercise his or her discretion and under special circumstances, grant an extension.

Each application for leave to appeal is reviewed carefully by a panel of three judges. It is important to remember that the Court's role is not to correct errors that may have been made in the courts below. Of the approximately 600 leave applications submitted each year, only about 80 are granted. Unfortunately, the task of preparing an application for leave to appeal or a response to such an application is made difficult by the fact that the grounds on which appellate courts grant or deny leave are somewhat obscure and often run counter to counsel instincts.2   The stated rationale for this approach is that the SCC has deliberately so refrained in order to maintain an “unfettered discretion” as to when leave should be granted.3

Applications for leave to appeal are dramatically important as a litigant losing such an application faces the same practical outcome as an unsuccessful appellant after full argument of the appeal.  As such, these applications should be carefully drafted by experienced Counsel well versed in the complexities of estate litigation. 


1. Hall, G. R. (1999). Applications for Leave to Appeal: The Paramount Importance of Public Importance. Advocates Quarterly, 22, 87-101.

2. Ibid.

3. Ibid.

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation Partners.

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