The Federal Court of Appeal in the Judicial System: Appeals to the Supreme Court

AuthorPeter McCormick
[  ]
 4
e Federal Court of Appeal
in the Judicial System:
Appeals to the Supreme Court
Peter McCormick
     is of course not the apex of the Canadian
judicial pyramid rather, it is an intermediate court of appeal whose deci-
sions can be appealed to (and either reversed or armed by) the Supreme
Court of Canada. e purpose of this chapter is to examine this relationship
by looking at the cases that are the subject of such further appeal: how many,
how often, by what sorts of litigant, involving what kinds of law and with
what results. But to proceed immediately to those questions would be cutting
the story short, because we would be looking at two universes of cases — the
entirety of the Federal Court of Appeal caseload on the one side (described
in Chapter ) and the body of Supreme Court decisions on appeals from the
Federal Court of Appeal on the other and ignoring the choices and deci-
sions that lie between these two points. is chapter will begin by looking at
this “in between,” which is to say a process of applications for leave to appeal,
only a modest (and shrinking) proportion of which is accepted for full review.
e progress of cases from the Federal Court of Appeal to the Supreme
Court involves successive narrowings. First, a minority of decided cases result
in one (or rarely, but not impossibly, both) of the litigants making an appli-
cation to the Supreme Court for leave to appeal. e narrowing is signif‌icant;
over the sixteen years between  July  and  July , several thousand
Federal Court of Appeal decisions resulted in less than a thousand applications
for leave. Second, only a minority of such applications are granted leave; of the
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        
almost-a-thousand applications for leave, less than a quarter were successful.
Finally, that number itself is narrowed down to those cases where the appeal
is successful in altering the Federal Court’s decision, which happens about
half of the time. On an annual basis, several hundred Federal Court of Appeal
decisions result in about half a dozen armations and an approximately equal
number of reversals in the Supreme Court. It is this series of narrowings, and
the implicit selection of actors and issues it necessarily involves, that puts f‌lesh
on the bones of the supervisory role of the Supreme Court of Canada over
the Federal Court of Appeal.1 In simplest terms: the frequency of applications
for leave is a measure of the extent to which litigants are treating the Federal
Court of Appeal as an intermediate step in a larger hierarchy of law; the suc-
cess rate of those applications is a measure of the scope of the Supreme Court’s
supervisory activities; and the ultimate success rate of appeals is a measure of
how actively interventionist the Supreme Court is with respect to the body of
caselaw being created by the Federal Court of Appeal.
is is an inquiry into the mysterious world of the decision to appeal,
one of the two great mysteries of the judicial world. (e other, rather better
explored, is the decision to litigate in the f‌irst place.) Faced by similar circum-
stances, some people are ready to go to court and some are not; similarly, in
the world of judicial hierarchies, some people are ready to challenge the initial
decision by appealing to a higher court and some are not. e rational actor
hypothesis is that this results from a reasonable anticipation of a possible
return that justif‌ies the expenditure of time and resources, but this under-ex-
plains in both directions: sometimes the losing side does not appeal even
when there appears to be some reasonable chance o f success, and sometimes
it appeals even when its prospects seem very slim indeed.2 e immediate
purpose in this part of the chapter is not to explain why, when, and how often
a particular set of litigants appeals, but to examine the territory that such an
explanation would have to target.
Chapter  described the appellate caseload of the Federal Court of
Appeal using some of the elements that will be carried through into this
1 This section builds on the now-somewhat-dated study in Peter McCormick, “The
Supervisory Role of the Supreme Court of Canada: Analysis of Appeals from Provin-
cial Courts of Appeal, 1949–1990” (1992) 3 Supreme Court Law Review (2d) 1 [McCor-
mick, “Supervisory Role”].
2 For example, an appeal is more likely to be successful if the appeal court reversed the
trial court decisions, and signif‌icantly more likely again to do so if that reversal involved
a divided panel. See McCormick, “Supervisory Role,” above note 1. The frequency of
applications for leave to appeal does not seem to be af‌fected by such considerations.

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