{"id":3346,"date":"2020-05-13T12:37:22","date_gmt":"2020-05-13T12:37:22","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=3346"},"modified":"2020-05-13T12:41:23","modified_gmt":"2020-05-13T12:41:23","slug":"the-phenomenon-of-deferred-reasons-a-tale-of-two-scc-decisions","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/the-phenomenon-of-deferred-reasons-a-tale-of-two-scc-decisions\/","title":{"rendered":"The Phenomenon of Deferred Reasons: A Tale of Two SCC Decisions"},"content":{"rendered":"\n

Earlier this month, Justice C\u00f4t\u00e9 released her dissenting reasons in Inte<\/a><\/em>rnational Air Transport Association, et al v Instrubel, NV, et al <\/a><\/em>(\u201cInternational Air<\/em>\u201d). The decision was historic (as far as I am aware), coming months after the Supreme Court dismissed the decision orally in December, \u201csubstantially\u201d 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.<\/p>\n\n\n\n

This may have been motivated by a desire to have the\nparties \u201cmove on\u201d (upholding the virtue of finality) and free up the Court\u2019s resources.\nBut I respectfully suggest that these access to justice benefits were marginal,\nwhile the downsides for proper decision-making and perceptions of fairness are\ngrave. I would suggest that the Supreme Court \u2013 which is, after all,\nfundamentally a law-making court and not a court of error-correction \u2013 not\nannounce its results without its reasons in all but the most exceptional of\ncases. However, another case came out last week \u2013 9354-9186 Qu\u00e9bec inc v\nCallidus Capital Corp <\/em>(\u201cCallidus<\/em>\u201d), where the decision to release\nthe reasons after the result was announced was more understandable. In that\nsense, it provides a value counterpoint to International Air<\/em>.<\/p>\n\n\n\n

International Air<\/em>: The Decision<\/h4>\n\n\n\n

International Air<\/em> concerned the ability of Quebec courts to \u201cissue a writ of\nseizure before judgment by garnishment of funds deposited in a bank account\noutside Quebec\u201d. A company objected on the grounds that Quebec courts lack\njurisdiction over property located outside Quebec. The majority of the Supreme\nCourt of Canada disagreed. <\/p>\n\n\n\n

The decision was significantly based on interpretation of\nQuebec\u2019s civil law, a subject on which I am not qualified to have an opinion.\nThough when it came to the international law issues at play, I found Justice C\u00f4t\u00e9\u2019s reasons persuasive. But nor did I find her reasons airtight.\nIn other words, I wanted the majority to be able to persuade me otherwise.<\/p>\n\n\n\n

The majority\u2019s\ndecision read, in full: <\/p>\n\n\n\n

[1] A majority of this Court is of the opinion to dismiss the appeals with costs throughout, substantially<\/strong> for the reasons of the Court of Appeal save for the matters addressed in obiter<\/em><\/strong>.<\/p>[2] Justice C\u00f4t\u00e9 is dissenting. Her reasons will follow. [Emphases added]<\/blockquote>\n\n\n\n

As such, it is\ndifficult to know what the majority believes the law is, as it did not expand\non how \u201csubstantially\u201d it agreed with the Court of Appeal. The result is great\ndifficulty in assessing the dissent vis-\u00e0-vis the majority.<\/p>\n\n\n\n

Concerns<\/h4>\n\n\n\n

Uncertainty in\nthe law is not the prime concern I have with International Air Association<\/em>.\nThere are certain matters that come to the Supreme Court as of right, where I\nwould venture it is appropriate for the court to essentially adopt the Court of\nAppeal\u2019s reasons. The precedential value of these decisions may be less, but it\ncan be understandable in the interests of finality, and to allow the Court to\nconcentrate on its law-making functions. However, in International Air\nAssociation<\/em>, the separation in timing of the reasons of the dissent from\nthe majority seems problematic from justice being seen to be done and ensuring\neffective decision-making. There seem to be three primary reasons for this.<\/p>\n\n\n\n

First, sometimes\nwell-crafted dissenting reasons can end up becoming majority reasons. It seems\nunlikely that the majority had Justice C\u00f4t\u00e9\u2019s\n\u201cbest case\u201d in December. Perhaps she could have persuaded one or more of her\ncolleagues.<\/p>\n\n\n\n

Second, the\nmajority\u2019s reasons are likely to be better if they respond to the dissent. The\nmajority already hedged its view on the law in its oral reasons. Responding to\nthe dissent could have clarified its holding. The flip side of the coin is that\nJustice C\u00f4t\u00e9\u2019s dissent could have been more\ntailored had she known exactly what the majority viewed the law to be. In other\nwords, even if the result would not have changed, the quality of the judgment\nmay have. In a recent interview with The Lawyer\u2019s Daily<\/em>, Justice C\u00f4t\u00e9 noted that she seeks to politely observe when\nher colleagues do not respond to points that she makes in dissent.<\/p>\n\n\n\n

Third, from a\n\u201cperception of fairness\u201d perspective, it seems difficult for an appellant (or\nrespondent) to be told that the majority was not interested in precisely\nexplaining why<\/em><\/strong> they lost. This can possibly be defended on the\nbasis of upholding access to justice, as the parties were allowed to \u201cmove on\u201d\nfrom a substantive perspective earlier. Moreover, such summary dispositions\nallow the Supreme Court to not devote resources to this case for any longer\nthan necessary. To be absolutely clear, I am very sympathetic to novel uses of\ncivil procedure to facilitate access to justice. Summary decisions from\nfirst-level appellate courts are eminently understandable in this regard. But\nthe Supreme Court\u2019s primary role (as recently retired Justice Robert Sharpe\nnoted in a recent book) is law-making, while a first-level appellate court\u2019s\nrole is primarily error correction. And even if such a summary disposition is\nappropriate when the Court is unanimous, in a case such as International Air\nAssociation<\/em>, the majority is sending the unfortunate message that it was\nnot open to having its mind changed by not waiting to release its reasons. If\nit found Justice C\u00f4t\u00e9\u2019s reasons unpersuasive,\nnothing prevented the majority from having a one-sentence disposition in May instead\nof December. The perception of justice that this would have brought would be\nprofound, and the inability of the parties to \u201cmove on\u201d would have been\nminimal, especially as there had already been a delay of nearly eleven months\nsince the Court of Appeal decision, and the respondents won the appeal. Nor\nwere their liberty or other urgent commercial interests at stake that suggested\nirreparable harm would have occurred as a result of the wait.<\/p>\n\n\n\n

Where to go from here? Callidus <\/em>Showing the Way?<\/h4>\n\n\n\n

Ultimately, I\nview the procedure followed by the Supreme Court in International Air Association\n<\/em>to be unfortunate, if understandable. However, I do wish to underscore two\npoints.<\/p>\n\n\n\n

First, appellate\ncourts (particularly first-instance appellate courts, where appeals are\nfrequently taken as of right), should not hesitate to summarily dismiss appeals,\nwith brief written reasons, if the appeal is obviously with or without merit.\nThat very much furthers access to justice not only for the parties, allowing\nthem to move on, but also the public, by freeing up the appellate court\u2019s\nresources.<\/p>\n\n\n\n

Second, despite\nmy foregoing concerns, I can still imagine circumstances where it is\nappropriate for a court to announce its result (possibly over a dissent) and\nrelease reasons later. When? The obvious instance that comes to mind is when a\nmajority of the court believes an individual has been erroneously imprisoned\nand ought to be released immediately to put an end to wrongful imprisonment.\nThe acute interest in that case may well trump the aforementioned procedural concerns.\nBut this should be rare and, just as importantly, the reasons for doing so\n(including their exceptional nature) should be announced in the reasons. International\nAir Association<\/em> did not seem to be such a case.<\/p>\n\n\n\n

But Callidus <\/em>arguably\nis. In that case, the Supreme Court allowed the appeal \u201cfrom the bench\u201d and\nreasons followed. The unanimity among the court mitigated (even if it did not\neliminate) the aforementioned procedural concerns. Moreover, Callidus<\/em>\nwas an insolvency case where timing was of the essence in determining, inter\nalia<\/em>, whether restructuring or liquidating was appropriate, a decision that\ncould affect many livelihoods. Though not an instance of wrongful imprisonment,\none can understand the need to ensure the parties have finality to be able to\nenter the next stage of the insolvency proceeding. Moreover, the subsequent\nreasons helped develop the law.<\/p>\n\n\n\n

Justice requires\nreaching a substantively fair result. But it also requires going through\nprocesses that lead to a perception of fairness and, indeed, more accurate\ndecision-making. Some of these come with significant costs that may not be\nworthwhile. I wrote a doctoral dissertation largely on this issue. But we also\nneed to ensure that corners are not cut when the corner serves a valuable\npurpose. And with respect, the Supreme Court\u2019s process in International Air\nAssociation<\/em> seems wanting.<\/p>\n","protected":false},"excerpt":{"rendered":"

Earlier this month, Justice C\u00f4t\u00e9 released her dissenting reasons in International Air Transport Association, et al v Instrubel, NV, et al (\u201cInternational Air\u201d). The decision was historic (as far as I am aware), coming months after the Supreme Court dismissed the decision orally in December, \u201csubstantially\u201d through adopting the reasons of the Quebec Court of …<\/p>\n","protected":false},"author":133,"featured_media":3348,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[35,34],"tags":[535,72,268,534,64],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3346"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/133"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=3346"}],"version-history":[{"count":2,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3346\/revisions"}],"predecessor-version":[{"id":3350,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/3346\/revisions\/3350"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/3348"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=3346"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=3346"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=3346"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}