Canada: 2018: The SCC Mid-Year Review – How's It Going So Far?

Given the popularity of our annual SCC Year in Review article, we thought we would provide a mid-year update to check in on what the Court has been doing so far this year and what we can expect for the balance of the year.

Of course the biggest news - which began at the end of last year and continued into the beginning of this year - was the retirement of former Chief Justice Beverly McLachlin and the swearing in of new Chief Justice Richard Wagner. As we all know, Chief Justice McLachlin was the longest serving Chief Justice in Canadian history, sitting on the Supreme Court of Canada for twenty-six years, seventeen of those as Chief Justice, and being the first (and, to date, only) woman to hold the office of Chief Justice of Canada. Even though she would be entitled to sit on a beach and do nothing for the rest of her life after a career that included private practice, academia, and then 37 years as a judge, Justice McLachlin has accepted an appointment as a non-permanent judge of Hong Kong's supreme court, the Court of Final Appeal, and is a published fiction writer with the release of the legal thriller Full Disclosure in May of this year.

The elevation of Justice Wagner (appointed to the SCC by Stephen Harper in 2012) to Chief Justice of Canada on December 18, 2017 coincided with the appointment of Justice Sheilah Martin to the Supreme Court of Canada from the Court of Appeal for Alberta. Both appointments were seen as a confirmation of the non-partisan nature of court appointments in Canada - which is in stark contrast to what we see in our neighbour to the South. The same was true of Justice McLachlin's appointments. Both Justices McLachlin and Wagner were appointed to the superior court of their provinces by a Liberal prime minister, elevated to the Supreme Court of Canada by a Conservative prime minister, and then selected as Chief Justice by a Liberal prime minister. Justice Martin was appointed to Court of Queen's Bench for Alberta in 2005 and then appointed to the Supreme Court of Canada in 2017 when Justin Trudeau was prime minister.

Chief Justice Wagner has announced a number of initiatives to make the Supreme Court and its decision-making more accessible to Canadians, including publishing plain language summaries of the Court's decisions on the SCC Twitter feed and Facebook page. The Chief Justice also held a news conference last month (which is itself a rare event) and talked about the need to engage with the public and his hope that some day the Court might be able to hold hearings outside Ottawa. On the technology side, the Court has improved the webcasting technology that it uses so that the public can easily watch live feeds and/or archived webcasts of all cases argued at the Court.1 The Court has also announced that the entire collection of the Supreme Court Reports - all the way back to 1878 - are now available on the SCC website. Speaking of the SCC website - it has been updated and re-organized with instant access on the home page to the live feed for court hearings, to the recent judgments of the Court and the Court's Twitter feed.2

In terms of the Court's workload so far this year, it has heard 44 appeals and released 36 reported decisions - which is right on track with average over the past ten years for the number of appeals heard and decisions rendered. Many of the reported decisions released so far this year are in respect of appeals argued last year, including decisions in a number of high profile cases such as R. v. Comeau,3 Groia v. Law Society of Upper Canada,4 and Trinity Western University.5 There is only one case still under reserve from 2017 for which the decision has not yet been released: Churchill Falls (Labrador) Corporation Limited v. Hydro-Québec,6 which considers whether the obligation to act in good faith and the obligation to exercise contractual rights reasonably in the Civil Code of Quebec impose a duty on the parties to a long term contract to renegotiate the terms of the contract if changing conditions, which were not foreseeable at the time of contract, make the deal unfair. The decision could have important implications for the negotiation and enforcement of long-term contracts.

Cases heard earlier this year with decisions still to be rendered include Mikisew Cree First Nation v. Governor General in Council7 (the duty to consult on legislation), Frank v. Attorney General of Canada8 (voting rights of non-resident citizens) and Attorney General of Canada v. Attorney General of Quebec9 (division of powers and pan-Canadian securities regulation). Each of these cases is likely to have important implications.

There are a number of interesting cases scheduled to be heard this Fall, including a trilogy of cases dealing with standard of review.10 In granting leave to appeal, the Court specifically noted that it is of the view that "these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases. To that end, the appellants and respondent are invited to devote a substantial part of their written and oral submissions on the appeal to the question of standard of review." 11

It is expected that there may be many parties seeking leave to intervene in these cases and it will be interesting to see if there is any change in how the Court grants intervener status in cases with wide public interest. Another case that has generated a large number of intervener motions (which have not yet been decided) is Bradley David Barton v. Her Majesty the Queen12 where 18 parties (including one coalition of 5 parties) are seeking leave to intervene. There was a fair amount of commentary over the Court's decisions last year to allow large numbers of interveners in some of the high profile cases such as Comeau and Trinity Western University. Interveners serve an important purpose in ensuring that the Court has the benefit of a broad perspective of views on issues of national importance but it is important that their views not eclipse those of the main parties to the appeal nor increase the burden or cost to the parties already engaged in the proceeding.

So, in summary, 2018 has been a good year, so far, at the Supreme Court of Canada with more to come. Check back with us at the end of the year when we publish our 2018: The SCC Year in Review.


1 Subject only to publication bans that prevent or limit access to the video feed in a few cases.

2 One of my favourite pages on the SCC webpage is the "On This Day" page which highlights events in the history of the Supreme Court of Canada and in the legal history of Canada:

3 R. v. Comeau, 2018 SCC 15

4 Groia v. Law Society of Upper Canada, 2018 SCC 27

5 Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33.

6 Churchill Falls (Labrador) Corporation Limited v. Hydro-Québec, SCC File No. 37238

7 Mikisew Cree First Nation v. Governor General in Council, SCC File No. 37441

8 Frank v. Attorney General of Canada, SCC File No. 36645

9 Attorney General of Canada v. Attorney General of Quebec, SCC File No. 37613

10 Bell Canada et al. v. Attorney General of Canada, SCC File No. 37896; National Football League et al. v. Attorney General of Canada, SCC File No. 37897; and Minister of Citizenship and Immigration v. Alexander Vavilov, SCC File No. 37748.

11 Okay, maybe these cases are only interesting to admin law nerds (and/or people who want to be able to watch US commercials during the Super Bowl) but, really, they should be of interest to anyone involved in court or tribunal proceedings as a major review of Dunsmuir could have important implications for the future state of the law.

12 Bradley David Barton v. Her Majesty the Queen, SCC File No. 37769

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