The year ahead at the SCC

CBA National: It's been a strange pandemic year for everyone. What stood out for you?

Nadia Effendi: The biggest takeaway is the impact of Covid. Hearings from March to May were postponed initially when the pandemic hit. But the court adapted quickly. It heard four cases in June via Zoom, and then it heard a combination of cases in person and via Zoom in September. And then, for the rest of the fall, it pivoted back to Zoom. So, I think it's been fairly seamless in a way, despite everything. But, as a result of the pandemic, there's little doubt that the number of appeals heard is down. Even ignoring the pandemic, I get a sense that there are fewer cases frankly that have been granted leave to appeal. Look at January: it has five cases scheduled; in February, four, and in March, eight. In March, it's sitting for two weeks, but in January and February, it's sitting for one week only. It generally used to sit two weeks per month. 

N: What explains the lower caseload?

NE: I'm not sure. It may be that the court feels that some of these disputes need to go through the various appellate courts before they come to it. Who knows? So, it's hard for me to speculate as to why that is so.

N: We're three years into the Wagner court. Any general impressions about its direction?

NE: It's still hard to characterize any specific trend. One obvious thing is the Chief Justice has wanted to increase access to the court. And that's just been a huge benefit for the public. Twenty or thirty years ago, had you asked anyone on the street what the Supreme Court is doing, they wouldn't have any idea. He's trying to change that by, for example, publishing more accessible summaries about the cases being heard, and the decisions, and having the court on social media. He's also been getting out there and speaking to the public about what the court is about. In terms of substantive law, for a period we didn't see as many unanimous decisions coming out of the court. That has shifted a bit. There are certainly still big decisions where you can see two, three sets of reasons. But there have also been some unanimous decisions — some of them from the bench [laughs]. So, it's still hard to figure out, if substantively on the law front, how the court is shaping up.

N: There has been some discomfort expressed about the court rendering decisions from the bench. Is it something that should be cause for concern? Or is there a reason why they are deciding so many cases from the bench?

NE: It's difficult to attribute one explanation for the trend. Historically, decisions rendered from the bench were in the criminal context where the case was as of right. In those cases, people generally didn't blink an eye thinking, "Well, you know, it was as of right, so maybe there wasn't really an issue after all." Recently, most of the criticism has been around cases that had been granted leave to appeal. It is possible that once they sit down with the entire record and the law, what they thought was maybe a conflict in the law no longer really exists in their view, and they can dispose of the case easily. Just in 2020, if my calculations are correct, they rendered decisions from the bench 15 times. That is out of approximately 45 cases they heard. And so the question is, why grant leave to appeal if you think the matter is one of national importance and deserving of the attention of the court, and then dismiss them with reasons in a couple of lines? What's troubling for me is having to explain to clients and parties not that they've lost, but that the court didn't feel the need to provide detailed reasons. As you know, parties invest a lot of effort and resources to bring their case to the Supreme Court, and if leave is granted, the message from the court is that there's something to debate. And parties want to have their day in court and to feel they're being heard.

N: Turning to the year ahead, what are the rulings you're focused on?

NE: Obviously, there are the three references out of Ontario, Saskatchewan and Alberta related to the Greenhouse Gas Pollution Pricing Act. Those were heard in September, and there were over 25 interveners. Another interesting case that was heard last [month] is Ethiopian Orthodox Tewahedo Church of Canada v. Aga. The court is expected to clarify the ambit of the courts' jurisdiction over religious bodies. The [Barry] Sherman estate case was quite high profile given who was involved. It deals with the issue of balancing privacy interests against the principle of open court. And there's also the big Indigenous case, Southwind v. Canada that was heard [last] month and involved over 20 interveners. There, the court was asked to look at the principle of equitable compensation, together with the legal principles that apply to Crown-Indigenous relationships. It's an interesting case because normally, the courts are asked to determine if there has been a breach of the fiduciary duty. But that's not what this is. It's a very practical case about the principles of equitable compensation, which will be of interest to individuals who practice in that area. There are many more cases, but those are the ones that are on my radar at the moment.

N: And what are the upcoming hearings that will be of interest to the legal community?

NE: There are quite a few cases of interest covering a wide array of issues, from constitutional to tort to labour to private law and criminal matters. One that people will be watching is the City of Toronto v. Attorney General of Ontario, which stems from the Ford government passing legislation to reduce the number of wards in Toronto. The court is being asked to look at section 2(b) of the Charter, with respect to electoral expression — not a provision that the court often looks at. That's being heard in March. Another case of interest is [Quebec comedian Mike] Ward's appeal. The court is being asked to determine whether comments were discriminatory and whether they're justified under freedom of expression. More importantly, it's being asked to balance entitlements under [Quebec's] human rights code with Charter protections, and if there's conflict and how you go about interpreting those. Moving away from constitutional issues, the court has a hearing in January that is a rare tort law case. That's Armstrong v. Ward, which will be of interest to people who practice in the area of medical negligence. The court will look at the standard of care and the standard review of trial judge decisions. And then, there's also a case in the labour sphere, Northern Regional Health Authority v. Linda Horrocks, that's being heard in February. It deals more specifically with the jurisdictional line between competing specialized tribunals — in this case, the human rights tribunal versus a labour arbitrators' jurisdiction. Among the cases not yet scheduled, there's H.M.B. Holdings Limited v. Antigua and Barbuda, which deals with private international law and the enforcement of foreign judgments. There's also Bradfield v. Royal Sun Alliance, a case out of BC. There, the question is, what's the proper test to be applied across Canada to determine the application of waiver and estoppel in insurance litigation?

N: What else is on your radar?

NE: Certain rules will get amended at the SCC and are expected to come into effect at the end of January. The one that is probably of interest to the legal community involves the requirement, once leave to appeal is granted, parties must get an agent. Parties will no longer be required to use an agent for appeal, although they will still be permitted to do that. As someone who acts as an agent on files, I'm a bit biased. I understand the access to justice issue. But I would say that there's value in having an agent. We deal with SCC day in and day out. So, we know all the practices of the court, and it's easy for us to provide advice on that front, offer guidance and provide precedents. And we monitor all things Supreme Court, and can assist the parties in drafting material. The other notable event is that Justice [Rosalie] Abella is retiring in 2021. Her birthday is July 1st, so I guess that's when she would retire. But she can participate in judgment for six months following her retirement. So, we still expect decisions from her until the end of the year. In terms of replacing her, there's pressure to ensure that our Supreme Court reflects the community at large, which I suspect the Justice Minister and the Prime Minister will be looking at. There's also discussion about whether we want judges appointed to the Supreme Court to be bilingual. That's another issue they are going to have to grapple with. 

This interview has been edited and condensed for publication.