10 May 2010

Participants

• James O’Reilly
• Barbara Kincaid
• Anne Roland
• Louise Meagher
• Justice Jack Major
• Justice Charles Gonthier
• Justice Louis LeBel
• Henry Brown
• Sylvie Roussel
• Richard Ellis
• Bill Ehrcke
• Shawn Greenberg
• Chris Rupar

1. Approval of Agenda

Approved.

2. Approval of May 14, 2001 meeting minutes

Approved.

3. Legislation and Rules

a. New Rule 44 – Full Cases in Books of Authorities

Question: whether cases need to be reproduced when the quotation is in the factum?

• If full quote is in factum, no use in reproducing the case.
• Only need copies of those cases which lawyer intends to rely on.
• If available electronically, do not need to put in.
• Question: does “intends to rely on” mean in oral argument?
  • this phrase is intended to target the oral hearing
  • it needs to be clarified

b. New Rules 56, 36, 37 – Deadlines for Filing the Intervenor’s Factum

• Liaison Committee is comfortable with new time frames.
• You can always get an order to avoid rules.

c. Review of Tariff for costs

Question: What is going to happen to tariff?

• Tariff always modest.
• Tariff has sat for a number of years. It should be increased.
• May have to go back to CBA membership re: tariffs issue.
  • consultation
    Court would be interested in hearing from the CBA on the issue of whether to revise the tariff
• Henry noted that there is some attractiveness to having same tariff as jurisdiction where you started a proceeding.
• Henry believes tariff is too low. He understands the access-to-justice issue but costs are a good disincentive to frivolous applications.
• Liaison Committee will go back to the CBA to consult.

d. Amendments to Supreme Court Act – Stays of Proceedings and Security for Costs

Question: Is there progress being made on stays and security for costs?

• CBA against security for costs – we won that in the Rules.
• Stays – Court is looking at streamlining sections 65–68 without changing substance
• Security for costs – Court is moving to remove the provision
  • it is meaningless in amount and should be removed
  • must work with Treasury Board re: question of how to deal with the money that’s on hand that has been deposited but not paid out
• Registrar can waive security for costs. As a matter of practice, the court is no longer requiring security to be posted.
• Stays – Court just wants to clean up section 65
  • they are happy to bump stays down to the Courts of Appeal.
  • most stays get sent back to Court of Appeal
  • sometimes, judges from SCC do issue a stay
• Courts in the provinces are more familiar with the parties and the case to know whether to grant stay
• SCC will entertain stay if Court of Appeal denies, but normally need special reasons
• Stays are automatic in Ontario for money judgments and in Québec for judgments being appealed from the trial level to the Court of Appeal. This is different in Alberta, where they are not automatic.
• If CBA has ideas on changes to the Act then send in; otherwise there is no specific movement to amend Act.
• SCC to re-circulate proposals of Project 2000 re: stays.

4. Update on Court’s Approach to Interventions

Question: Whether the Court has identified criteria for denying oral argument to intervenor

• Intervenor must bring something new to the argument. This is a pretty low standard.
• Court has granted 106 interventions since April 2001; only nine denied oral argument.
• If two intervenors are saying same thing, only one to be given oral argument.
• Oral argument would be denied where it would not add something to the appeal.
• With the new rules, the intervener may have to file before the respondent, so the intervener may lose the chance to respond to the respondent’s factum.
• If respondent is late, intervenor will get an extension.

5. Appeals as of Right

Chief Justice has made comments on appeals as of right. Question whether there are any initiatives in this respect?

• There is resistance from well-organized criminal bar.
• Without help of the CBA, Court can’t do anything.
• There is a concern that the number of appeals as of right is rising. Before there is any initiative from Court, they will want to understand how that part of the process is working. Any initiative would happen in a year or two.
• Statistics from Court – roughly four of 15 appeals as of right had merit. About 2/3 are disposed of summarily on the hearing date.
• Chief Justice had a discussion with Anne McLellan but the issue has not been taken up with Martin Cauchon.
• Court doesn’t recall ever denying leave to an applicant on the basis that there are too many as-of-right appeals
  • although it acknowledges that there may be a closer scrutiny of documents in leave applications
• Liaison Committee will work on consensus within CBA if the Court is interested in reform.
• Court is interested in reform. The question is what is the right way to do it.
• Question whether after the 1997 amendments there are cases that previously were as-of-right that should’ve been heard.
• Last time, it took five years to get modest changes through the legislative process. The Court will probably not do it again without the support of the CBA.
• This issue also goes to function of court – is it a court of error?
• Some appeals as of right are allowed from the bench as well. Some of these cases might not have got leave.
• Criminal bar would say that SCC should be a court of error when it could prevent a miscarriage of justice – especially where there is dissent in the Court of Appeal.
• One question is whether having a dissent in the Court of Appeal is diagnostic of anything. Unanimous Court of Appeal decisions are also overturned.
• The possibility of getting a dissent affects the way the case is argued.
• Wouldn’t cases with a dissent get careful scrutiny even if there were no as-of-right appeals?
• Court to work on statistics for CBA in relation to this issue.

6. Time to State Constitutional Questions

Question: What is process for stating constitutional questions?

• Used to be that the executive legal officer did a memo and then spoke to the Chief Justice about how to approach. This took too long.
• Now, the file goes to legal department. They do a memo to the executive legal officer re: the questions that are raised and those that should have been raised.
• Time line for stating constitutional questions varies.
• Counsel can assist the process by organizing the information – e.g. was there a question stated below, what are the common-law rules that apply (e.g. Krieger)
• Counsel should remind themselves of the purpose of stating a constitutional question – to notify provincial attorneys general. At the moment, some counsel turn the process into a way of arguing the merits.
• Part of CBA’s concern is that under the new Rules, the time lines run from the date a constitutional question is stated. This leads to uncertainty.
• Court could perhaps just allow lawyers to state the constitutional question themselves and forward it to the provincial attorneys general. The question of whether the right constitutional question is stated could then be part of the appeal.
  • The problem with this approach is that it’s not helpful for the attorneys general.
• Right now, the majority of constitutional questions are disputed.
• In the provincial and Federal courts, parties state their own constitutional questions.
• Delays in stating constitutional questions have increased in past decades from weeks to months.
• Attorneys General’s decision on whether to intervene is difficult. Therefore, they need to know with certainty what the constitutional question is. Otherwise, they will err on the side of caution and intervene when they otherwise might not have done so.
• Question as to whether it speeds up the process by having counsel appear. Some recall that it used to be quicker.
  • but that recollection doesn’t take into account the internal process that used to happen before counsel appeared.
  • Maybe the answer is to leave it to the parties.
  • Perhaps there should be a practice directive on these issues. The Court will consider whether to do this.

7. CBA Letters of Support in Cases Before the Court

Question: Is it helpful for court to receive interventions from CBA that a particular application for leave should be granted?

• There are concerns about the slippery slope – for example, what if other groups such as the Canadian Medical Association decide to write letters in support.
• The Court already gets a lot of affidavits in leave applications saying that this is important case. It’s already burdensome and there is a concern that it will significantly impact on an already weighty process.
• These types of letters do not assist the Court.

8. Media lockups

• This issue is still under review.
• Court had meeting with Parliamentary Press Gallery. The Court advised the Gallery of the CBA’s views.
  • Court’s Media Committee is meeting June 19. They will discuss the issue then. The Committee includes journalists.
  • Not all members of media support having lockups.
  • If they did occur, lockups would only be done in a handful of cases – e.g. where there were lengthy reasons for judgment or where there was a high public interest.

9. Visual Aids in Court

• Court welcomes visual aids, such as PowerPoint presentations
• However, such presentations would be part of counsel’s one-hour speaking time.
• Such presentations can be useful in land claims disputes – e.g. with maps showing the area of dispute.
• There may be technical problems with using the visual aids in court, depending on the technology involved.

10. E-filing Update

• The Court received some funding from the government on-line project.
• Court engaged in prototype e-filing project and has developed a list of lessons learned which will be published.
• It was a service-provider model (connection to the internal system). Four studies are to be published.
• In the first prototype, four cases were hooked into internal system. The panel was doing cases electronically.
• The Court cannot pursue an ongoing project without funding from Treasury Board.
• Co-ordination among provincial e-filing systems is not very good. There are some failures.
• There is a question of confidentiality: why can’t you punch up a person’s factum on the internet?
• There is a question in British Columbia about whether it was a mistake to put family law judgments on-line, given that some people access it just to learn about their neighbours or colleagues.
• A United States committee has been struck on the issue of e-filing and privacy.
• Also, e-filing and publication on the internet could allow circumvention of publication bans.
• There is also a question of cost effectiveness and whether e-filing will actually hinder access. Machines to scan documents for an application record can be expensive.
• Court has decided that no materials subject to a publication ban will be subject to e-filing.
• The e-filing project will take a couple of years.

11. Selection of panels for leaves

Question about the process of selecting panels for leave applications.

• Assignment of cases is random.
• Panels are assigned by the Chief Justice every year and last for one year.
• There is one senior justice on every panel.
• A panel with no Québec judges can hear Québec cases.
• Related cases go to same panel.
• All nine judges see all the leave applications before they are decided.