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.

Footnotes

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: https://www.scc-csc.ca/court-cour/dayhist-jourhist-eng.aspx

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

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions