Earlier this month, Justice Côté released her dissenting reasons in International Air Transport Association, et al v Instrubel, NV, et al (“International Air”). The decision was historic (as far as I am aware), coming months after the Supreme Court dismissed the decision orally in December, “substantially” through adopting the reasons of the Quebec Court of Appeal. In this post, I respectfully query the procedure (putting aside the result) followed in disposing of the appeal. I fear this procedure has the risk of setting an unfortunate precedent.
This may have been motivated by a desire to have the parties “move on” (upholding the virtue of finality) and free up the Court’s resources. But I respectfully suggest that these access to justice benefits were marginal, while the downsides for proper decision-making and perceptions of fairness are grave. I would suggest that the Supreme Court – which is, after all, fundamentally a law-making court and not a court of error-correction – not announce its results without its reasons in all but the most exceptional of cases. However, another case came out last week – 9354-9186 Québec inc v Callidus Capital Corp (“Callidus”), where the decision to release the reasons after the result was announced was more understandable. In that sense, it provides a value counterpoint to International Air.
International Air: The Decision
International Air concerned the ability of Quebec courts to “issue a writ of seizure before judgment by garnishment of funds deposited in a bank account outside Quebec”. A company objected on the grounds that Quebec courts lack jurisdiction over property located outside Quebec. The majority of the Supreme Court of Canada disagreed.
The decision was significantly based on interpretation of Quebec’s civil law, a subject on which I am not qualified to have an opinion. Though when it came to the international law issues at play, I found Justice Côté’s reasons persuasive. But nor did I find her reasons airtight. In other words, I wanted the majority to be able to persuade me otherwise.
The majority’s decision read, in full:
 A majority of this Court is of the opinion to dismiss the appeals with costs throughout, substantially for the reasons of the Court of Appeal save for the matters addressed in obiter. Justice Côté is dissenting. Her reasons will follow. [Emphases added]
As such, it is difficult to know what the majority believes the law is, as it did not expand on how “substantially” it agreed with the Court of Appeal. The result is great difficulty in assessing the dissent vis-à-vis the majority.
Uncertainty in the law is not the prime concern I have with International Air Association. There are certain matters that come to the Supreme Court as of right, where I would venture it is appropriate for the court to essentially adopt the Court of Appeal’s reasons. The precedential value of these decisions may be less, but it can be understandable in the interests of finality, and to allow the Court to concentrate on its law-making functions. However, in International Air Association, the separation in timing of the reasons of the dissent from the majority seems problematic from justice being seen to be done and ensuring effective decision-making. There seem to be three primary reasons for this.
First, sometimes well-crafted dissenting reasons can end up becoming majority reasons. It seems unlikely that the majority had Justice Côté’s “best case” in December. Perhaps she could have persuaded one or more of her colleagues.
Second, the majority’s reasons are likely to be better if they respond to the dissent. The majority already hedged its view on the law in its oral reasons. Responding to the dissent could have clarified its holding. The flip side of the coin is that Justice Côté’s dissent could have been more tailored had she known exactly what the majority viewed the law to be. In other words, even if the result would not have changed, the quality of the judgment may have. In a recent interview with The Lawyer’s Daily, Justice Côté noted that she seeks to politely observe when her colleagues do not respond to points that she makes in dissent.
Third, from a “perception of fairness” perspective, it seems difficult for an appellant (or respondent) to be told that the majority was not interested in precisely explaining why they lost. This can possibly be defended on the basis of upholding access to justice, as the parties were allowed to “move on” from a substantive perspective earlier. Moreover, such summary dispositions allow the Supreme Court to not devote resources to this case for any longer than necessary. To be absolutely clear, I am very sympathetic to novel uses of civil procedure to facilitate access to justice. Summary decisions from first-level appellate courts are eminently understandable in this regard. But the Supreme Court’s primary role (as recently retired Justice Robert Sharpe noted in a recent book) is law-making, while a first-level appellate court’s role is primarily error correction. And even if such a summary disposition is appropriate when the Court is unanimous, in a case such as International Air Association, the majority is sending the unfortunate message that it was not open to having its mind changed by not waiting to release its reasons. If it found Justice Côté’s reasons unpersuasive, nothing prevented the majority from having a one-sentence disposition in May instead of December. The perception of justice that this would have brought would be profound, and the inability of the parties to “move on” would have been minimal, especially as there had already been a delay of nearly eleven months since the Court of Appeal decision, and the respondents won the appeal. Nor were their liberty or other urgent commercial interests at stake that suggested irreparable harm would have occurred as a result of the wait.
Where to go from here? Callidus Showing the Way?
Ultimately, I view the procedure followed by the Supreme Court in International Air Association to be unfortunate, if understandable. However, I do wish to underscore two points.
First, appellate courts (particularly first-instance appellate courts, where appeals are frequently taken as of right), should not hesitate to summarily dismiss appeals, with brief written reasons, if the appeal is obviously with or without merit. That very much furthers access to justice not only for the parties, allowing them to move on, but also the public, by freeing up the appellate court’s resources.
Second, despite my foregoing concerns, I can still imagine circumstances where it is appropriate for a court to announce its result (possibly over a dissent) and release reasons later. When? The obvious instance that comes to mind is when a majority of the court believes an individual has been erroneously imprisoned and ought to be released immediately to put an end to wrongful imprisonment. The acute interest in that case may well trump the aforementioned procedural concerns. But this should be rare and, just as importantly, the reasons for doing so (including their exceptional nature) should be announced in the reasons. International Air Association did not seem to be such a case.
But Callidus arguably is. In that case, the Supreme Court allowed the appeal “from the bench” and reasons followed. The unanimity among the court mitigated (even if it did not eliminate) the aforementioned procedural concerns. Moreover, Callidus was an insolvency case where timing was of the essence in determining, inter alia, whether restructuring or liquidating was appropriate, a decision that could affect many livelihoods. Though not an instance of wrongful imprisonment, one can understand the need to ensure the parties have finality to be able to enter the next stage of the insolvency proceeding. Moreover, the subsequent reasons helped develop the law.
Justice requires reaching a substantively fair result. But it also requires going through processes that lead to a perception of fairness and, indeed, more accurate decision-making. Some of these come with significant costs that may not be worthwhile. I wrote a doctoral dissertation largely on this issue. But we also need to ensure that corners are not cut when the corner serves a valuable purpose. And with respect, the Supreme Court’s process in International Air Association seems wanting.