Managing institutional risk: how do changes at the Supreme Court affect litigation?
The Supreme Court of Canada is a large building, made of marble, at the corner of Kent and Wellington streets in Ottawa. But although the building might be more-or-less permanent, its occupants, and therefore the law it makes, are much less so. Regular litigants and court-watchers know that the specific personnel on the Supreme Court has a dramatic impact on how that Court approaches legal questions, and ultimately how it selects legal outcomes. And in light of the frequency of turnover at that Court, it is worth exploring just how different those approaches can be, even on questions that are supposed to be settled.
Stability and turnover—the life of a court
The typical term of a Supreme Court of Canada judge is between 10-15 years. Practically, this means a new judge arrives approximately four years out of every five1. While there are excellent reasons for this kind of regular turnover, it comes with risks and concerns for people and institutions who prioritize legal finality and stability. The last 10 years have seen significant changes in contract law2, and a 5-4 decision that just narrowly avoided massively expanding the scope of negligence3. But perhaps nowhere are shifts in legal philosophy more apparent than in the area of constitutional law, where changes in the collective judicial philosophy of the Court mean dramatically different outcomes.
Constitutional interpretation in Canada: notionally consistent, practically divergent
Canadians could be forgiven for assuming that disagreements about constitutional interpretation are a wholly American enterprise. South of the border, politicized debates about original intent and historic meaning appear to rule the day. In Canada, similar debates are also unfolding, although in a more classically Canadian way: the consensus is broader, the differences are smaller, the implications are fewer, and the entire debate occurs outside of the public’s consciousness.
Part of this opacity is because there is notional consensus around Canada’s “purposive approach” to constitutional interpretation, outlined by Justice Dickson in R. v. Big M Drug Mart Ltd4: First, look at the text. Then consider the scope and purpose of the provision at issue, with an emphasis on its philosophical and historical contexts5. In some cases, international law may help to confirm an interpretive result, but courts should be conscious not to “overshoot” the text of the Constitution by looking beyond it6.
In practice, the purposive approach—sometimes described as a living tree capable of expansion and growth within its natural limits7—can leave a lot of scope for flexibility, a trend that lower courts appear to have noticed as they have tried to follow the thread. To illustrate the differences, we can look at the way in which two recently retired SCC judges—Justice Abella and Justice Brown—applied what was ostensibly the same approach, but in reality, was very different.
Justice Abella’s approach to constitutional adjudication lay at the maximalist end of the interpretive spectrum. Toronto (City) v. Ontario (Attorney General)8 offers a good example of that maximalism at work. In that case, the City of Toronto sued the province of Ontario after the province legislated a reduced ward structure and shrank the size of City council during council elections. The City asserted an infringement of section 2(b) Charter rights, arguing that the reduction of council seats breached constitutional guarantees of free expression9.
The majority dismissed the appeal and found for the province. His decision emphasized the constitutional status of municipalities as creatures of the provinces, and concluded that its decision did not limit electoral participants from engaging in “further political expression” under the new ward structure10.
Justice Abella, writing for the dissent, insisted that unwritten constitutional principles could supplant written law and invalidate provincial legislation11. In one sense, the argument was compelling. Ontario’s legislation was highly contentious, not least because it undermined months of campaigning and fundraising in now-defunct wards12 which at least seemed to undermine democracy, which the Court has advised is one of four animating principles of the Canadian constitution13. Still, the dissent invited pause. It is one thing to suggest that unwritten principles add colour to the text of the Constitution and quite another to assert, as Justice Abella did, that unwritten principles are the “real” constitution, and the text a mere “non-exhaustive” attempt to write some of it down14.
Justice Abella’s maximalism stands in stark contrast with the approach that Justice Brown took in Québec (Attorney General) v. 9147-0732 Québec Inc15. The majority and concurrence agreed in the result and little else: corporations are not protected against cruel and unusual punishment by section 12 of the Charter. For Justice Brown, the opinion was an opportunity to highlight the primacy of constitutional text, which he stated must serve as the “outer bounds of a purposive inquiry”16. This, he stressed, was not a call for textualism but a reminder that the words of the Constitution must always be the Court’s first port of call.
What can lower courts do with this?
One of the significant challenges when differently constituted Supreme Courts articulate different theories of interpretation is that it leaves lower courts with considerable uncertainty about how to handle these issues—as well as considerable flexibility about how to address them.
Justice Stratas of the Federal Court of Appeal is one of the most vocal commentators on this subject. In Canada v. Boloh 1(a)17, the Court overturned a decision holding that Canadian citizens detained in Syria had a constitutional right to be returned to Canada pursuant to section 6(1) of the Charter18. The result below, Justice Stratas held, stemmed from a loose approach to constitutional interpretation, where the text was not a constraint on the meaning of constitutional provisions but a springboard for the Court to widen the provision19. He warned of the risk of focusing less on the text of the provisions and more on the principles and values underpinning them20: values are in the eye of the beholder.
What can litigants do with and about this uncertainty
Courts are a human institution, so it’s no surprise that the particular humans in charge of running them have a dramatic impact on outcomes. But for clients and their counsel, not knowing where the Court stands on different topics raises challenges, and the occasional opportunity.
The first challenge is that uncertainty drives a higher volume of litigation that goes on for longer. Plaintiffs bring claims that might not have succeeded under previous courts. Parties that do not understand what a court is likely to do with their case often feel obliged to find out rather than settling them.
The second challenge, specific to commercial cases, is that a huge number of transactions occur every day in Canada, and an unstated but crucial assumption to those transactions is that the contracts they are based on have a more-or-less stable meaning, in accordance with more-or-less stable law. A rapidly changing landscape undermines this assumption and makes transactions more difficult.
But of course, shifts in the law do not work only in one direction, and new judges can also bring new opportunities. The case that was lost or not taken up might get a new look with the right bench.
Other areas of law?
Although we have focused on constitutional interpretation, the uncertainty arising from a frequently changing Supreme Court extends to all areas of law. As our newest SCC judge—Justice Moreau—takes her seat in Ottawa, it remains to be seen what other changes might be in store.
- See Bhasin v. Hrynew, 2014 SCC 71, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, and Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7.
- See 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35.
- Ibid, para. 117.
- Ibid, para. 117.
- Edwards v. Canada (Attorney General), [1930] AC 124, pp. 106-107.
- 2021 SCC 34 [Toronto (City)].
- Ibid, para. 4.
- 2020 SCC 32 [Quebec (Attorney General)].
- Ibid, para. 9.
- 2023 FCA 120 [Boloh].
- Ibid, para. 20.
- See, for example, the broad rights of access to courts found under the Attorney General’s judicial appointment power in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 and the “expansive” overbreadth doctrine developed under section 7 of the Charter in Canada (Attorney General) v. Bedford, 2013 SCC 72.