(Disponible uniquement en anglais)
Present
Supreme Court of Canada (SCC)
- Mr. Justice Major (Chair)
- Mr. Justice Binnie
- Madame la juge Arbour
- Mr. Justice Fish
- Me Anne Roland
- Ms. Louise Meagher (Secretary)
- Me Daniel Jutras
- Ms. Barbara Kincaid
Canadian Bar Association (CBA)
- Me Sylvie Roussel (Chair)
- Mr. J. Thomson Irvine
- Mr. David C. Day
- Mr. William Louis Ryan, Q.C.
- Ms. Tamra L. Thomson
- Mr. Christopher Rupar (Justice)
1. Approval of the Agenda
The agenda was approved.
2. Approval of the Minutes of April 7, 2003
The minutes were approved.
3. Proposed Amendments to the Rules
Me Roland advised that draft amendments to the Rules were nearly completed but that certain questions requiring guidance from the judges of the Court had been brought to their attention at their retreat held in May 2004. The questions were set out in a memo, dated May 29, 2004 from Nadia Loreti, which had also been distributed to all members of the Committee. Me Roussel indicated that the members of the Bar wished to address certain of the items set out in Ms. Loreti’s memo, as follows:
Rule 22 (Style of Cause)
Me Roussel proposed that the rule be amended to provide that a person who was a party in the court below, but who is not adverse in interest in the SCC should have automatic intervener status. Justice Binnie commented that the automatic intervener would still have to apply for permission to argue orally, as is the case currently in the two-stage process for interveners. Me Roland queried whether the Court would be comfortable divesting itself of its privilege to decide who may intervene on an appeal. Justice Arbour suggested that an alternative might be to allow automatic intervener status at the leave stage only, and require the intervener to reapply for status, should the appeal proceed, since they would have to be making an application to argue orally in any event. Justice Binnie did not agree with allowing more interveners at the leave stage, a practice which is discouraged now. Justice Major guessed that there are not too many cases where Me Roussel’s suggestion would be necessary, noting that a successful respondent in the court of appeal would be happy to disappear, leaving the problem only where there is an unsuccessful co-applicant in the appeal court. He did not see the value in giving intervener status, because they would get no remedy. Would it not be enough to advise the parties so that they could decide for themselves whether to seek status rather than forcing it on them? Justice Arbour agreed, noting that it would be highly unlikely that a co-applicant would be denied a motion seeking party status on appeal. Me Roussel noted that the Rules already provide for notice, but that is not enough. Full parties in the appeal court (as opposed to policy interveners) should be able to preserve some status and receive copies of the main parties’ factums. All agreed that this year again, there was no agreement on the proper definition of “party.”
Rule 42 (Content of Factums)
Mr. Irvine proposed that the Rules make it clear that the intervener has a different function from the Appellant and Respondent. For instance, in Part V of the factum, rather than arguing that the appeal should be allowed or dismissed, the intervener should state a position in law. The judges agreed. The members of the bar offered to provide a draft rule to that effect.
Rule 46 (Federal References)
Mr. Irvine noted that though in general the bar supports the more detailed process proposed for references, the service provisions in the draft rule are asymmetrical, and that the Attorney General of Canada should have to serve the provincial Attorneys General as well as the amicus curiae. Mr. Rupar advised that it is common practice for the AG of Canada to serve everyone, noting the mounds of paper that are circulating on the same-sex reference.
Rule 45 (Condensed Book for the Hearing)
Mr. Day suggested that the rule should be amended to provide that the condensed book be printed on the left side of the pages only, so that judges may take notes on the right. He also proposed that the so-called “road maps” which often appear at the beginning of the condensed books should be confined to a skeletal outline not exceeding two pages. Mr. Rupar agreed that a more specific rule is required because counsel do not want to waste their time on an appeal arguing about an unfair road map. Justice Binnie noted that one-sided printing would make the books pretty fat and commented that some of these road maps really amount to a second factum, which could give the party filing it an undue advantage. Mr. Day agreed, pointing out that opposing counsel usually only sees the document minutes before the start of the hearing. Justice Arbour did not really see that the road map produced at the start of the hearing is any worse than a counsel who, in oral argument, diverges widely from the written factum. She commented that it could be useful to have an index showing “issue 1, (state the issue) at tabs 1 to 5, issue 2, (state the issue) at tabs 6 to 10” etc. Justice Major said the Court already gets too much paper and since the road maps are in danger of being abused it might be better to return to a simple index.
4. Report on Self-Represented Litigants
Me Roland introduced the report, noting that, at 20% of leave applications filed, the number of cases involving self-represented litigants posed a real challenge for the Court. She also outlined some of the ways that Court employees try to help these litigants get their filings in order. Me Roussel commented that dealing with self-represented litigants is also a problem for counsel, who often have difficulty effecting service on them. She suggested an amendment to the rules that would allow for substituted service by regular mail when an affidavit detailing failed attempts to serve in the regular way is produced. Ms. Kincaid explained that the report had been produced in the context of a study by the Canadian Forum on Civil Justice on access to justice by self-represented litigants and that courts were consulting to find better ways of dealing with this type of litigant. She also noted that the 20% only included applicants and not respondents on leave applications. She also expressed Court staff’s appreciation for the help given by respondent counsel in helping to clarify sometimes muddy procedural histories.
5. Identification of Publication Bans on SCC Dockets
Mr. Irvine noted that it is clear from the calendar and hearing lists on the Court’s website which cases have publication bans and that it would also be useful to have that information in the electronic dockets. Ms. Kincaid replied that the Court’s Case Management Committee was already working on a solution to provide the information as a pop-up note whenever a docket is called up.
6. Motions for reconsideration
Mr. Day proposed that rule 73 should be amended to provide for a right of reply in cases where an application for reconsideration has been accepted for filing and been responded to. Me Roland noted that this proposal had been considered and rejected the last time the Rules were amended. Justice Arbour noted that the court could always request more information, such as a reply, if necessary for the disposition of the application. Justice Major wondered if this was really of concern to the profession at large. Mr. Day admitted that it was not a compelling issue.
7. SCC Tariff
Me Roussel advised that the Bar could not reach a consensus on recommended changes to the tariff except to the extent of recommending that the fees be raised by the cost of inflation since 1994, the last time the tariff was amended. She noted that fees vary widely from province to province, being very high for example in Ontario and low in Québec. Justice Major expressed surprise that the Bar would not argue for an increase in the tariff, at least to the extent that an applicant should have to make an expression of serious intent in bringing an application. Justice Binnie offered that the reasoning for keeping the tariffs low is that the country’s court of last resort should be accessible. Justice Arbour added that, in light of the fact that 20% of leave applicants are self-represented, maybe it is not a good time to raise fees. Justice Major argued that, to the contrary, these applicants should be discouraged. Me Roland advised that leave applications are usually taxed at between $600 and $2500. Justice Major noted that the Court is here to serve the Bar and that he would surrender.
8. Oral Arguments by Interveners: Timing of Notification and Length of Time for Argument
Me Roussel advised that interveners need as much notice as possible of whether or not they will be allowed to argue orally, so that they can make appropriate travel arrangements. She did acknowledge that the new process of bringing the motions to a judge as soon as the time for filing intervener factums is up would work better than waiting for all the factums to be filed. Me Roland noted that there had been a few short notification periods this past winter, because some cases had been advanced for hearing. Justice Major offered to make a deal: the Court would get the orders out faster if interveners would cease the practice of trying to split 15 minutes argument time amongst three counsel.
9. Service of Factums on Interveners
Me Roussel pointed to a perceived unfairness in the rules which requires interveners to serve the parties but only obliges parties to serve interveners on request. She argued that all participants in an appeal – parties as well as interveners – should have all the information, and that parties should be made to serve at least their factums on interveners, if only electronically.
10. Media Lock up Report
Me Jutras reported that, though the media had requested lock-ups in a number of cases, only one had been held recently, in the Harper case. Justice Major asked if there would be another one. Me Jutras replied that it would depend on the diligence of the media in requesting one – they are supposed to request within one month of the appeal being heard. Justice Binnie asked if the Bar still had concerns about the process. Me Jutras reminded that a media lock-up is only held on consent of the main parties and that there is a separate lock-up for counsel. He said that there was a slight problem with the counsel lock-up because parties wanted their media/communications advisers to attend with their counsel. These requests have been refused. He also advised that the latest lock-up had proceeded much more smoothly than the first because of the new format, which provided for uninterrupted reading and a more controlled question and answer period. He also found that providing the members of the media with a list of key paragraphs from the reasons for decision, in order to guide their reading, was helpful. Me Roussel indicated that it would be useful for counsel to be provided with the list of paragraphs too. Justice Arbour quipped that maybe it would be useful for everyone if only the paragraphs on the list were published and the rest sent immediately to archives. Me Jutras expressed a reluctance to give his list to counsel because it was his list, not the judges’, and was really a list to help the media with “quotable quotes.”
11. Other issues
- Me Roussel asked if the Supreme Court Act would be amended soon to abolish the requirement for the security deposit. Mr. Rupar asked if that was what the Court wanted. Ms. Meagher replied that the Court had indicated years ago that it did.
- Justice Major noted the practice of many large American law firms to post flashy advertisements about their pro bono work, which he assumed was being done for good business reasons. He asked what the CBA was doing. Ms. Thomson replied that, though it was a relatively new endeavour, the CBA had established a committee last year whose goal was to encourage pro bono work by its members by helping to link local programs (for example charitable groups with lawyers groups), by advertizing best practices and by showing that pro bono work is a positive element for a law firm’s business plan. She expressed the view that many Canadian lawyers do give a lot of their time but they do not docket or advertize it like their American colleagues do.
12. End of Meeting
On Justice Binnie’s motion, Justice Major concluded, at 6:15 p.m., another spirited meeting of the CBA/SCC Liaison Committee. Dinner followed in the Judges’ Dining Room.
The meeting adjourned at 6:30 and was followed by a dinner in the Judges’ Dining Room.