Law Times

lAw Times • April 6/13, 2009 NEWS PAGE 5 Controversy simmers over rate of decisions overturned BY TIM NAUMETZ For Law Times OTTAWA — A controversy is brewing over the rate at which the Supreme Court of Canada over- turns decisions by the Court of Appeal of Quebec compared to ap- peals it hears from Ontario. Osgoode Hall Law School has published an analysis of Supreme Court decisions from the past fi ve years that says the court was 24-per-cent more likely to allow an appeal arising from Quebec than from Ontario. Th e article was titled "Is the SCC Anti-Quebec?: Top Court Statistics" and was published on March 26, following a Law Times story that drew attention to the high rate of applications for leave to appeal from Quebec compared to Ontario. One lawyer speculated to Law Times during research for its story that the high number of leave ap- plications from Quebec in 2008 –– 143 in 2008 compared to 141 from Ontario –– may have been due to expectations among Que- bec appellants that the Supreme Court was more likely to overturn decisions of the Quebec Court of Appeal. Th e Osgoode Hall analysis was published on thecourt.ca, an Osgoode Hall forum with a link on the law school's main web page. It found the Supreme Court allowed 51 of 90 appeals from Quebec, compared to only 29 of 63 from Ontario. In per- centage terms, the court allowed 57 per cent of appeals from Que- bec from 2004 to 2009 and 46 per cent from Ontario. "I found that the top court was 24-per-cent more likely to allow an appeal arising from Quebec than it was from Ontario," wrote the ar- ticle's author Kevin Tilley. But an expert on the Supreme Court of Canada with Gowling Lafl eur Henderson LLP in Ot- tawa says the diff erence between results for Ontario and Quebec appellants is unlikely related to quality of the Quebec Court of Appeal. Henry Brown, a partner at Gowlings and chairman of the fi rm's Supreme Court of Canada practice group, nonetheless says the lower number of Ontario decisions being overturned is a result of the "very strong panels" on the On- tario Court of Appeal. "I don't believe this has any- thing to do with the Quebec Court of Appeal," Brown tells Law Times. "Th ere's no sea change at the Que- bec Court of Appeal; that it used to get cases right and now it's getting them wrong. It's rather all about what's happening in the Supreme Court of Canada." Asked about the relatively low number of decisions being over- turned from Ontario — only the Atlantic provinces had a lower rate at 40 per cent — Brown respond- ed with praise for the Ontario Court of Appeal. "I think Ontario has [had] par- ticularly strong courts of appeal, very strong panels," he says. "Frankly the type of judges and the thinking and the ap- proach of judges on the Supreme Court of Canada and the type of judges, their thinking, and the approach that we get on the CPR (LT 1-3x4).indd 1 Ontario Court of Appeal, the Binnie types, the Charron types, the Abella types, the chief justice, and others, they could go to On- tario seamlessly and many of the Ontario Court of Appeal judges could move up here and you just would not notice the diff erence." Th e Tilley analysis on Supreme Court of Canada decisions from Jan. 1, 2004 to March 24, 2009, excluded all non-appeal matters such as references and procedural motions, and ambiguous deci- sions, such as judgments involving an appeal and a cross-appeal where one was allowed and the other dismissed. Decisions in which multiple appeals were joined were counted as one unless the appeals arose from diff erent provinces, in which case it counted once for each originating province. Th e rates for allowing appeals arising from other provinces and regions were 50 per cent for B.C., 58 per cent for Alberta, 58 per cent for Saskatchewan (only sev- en of 12 appeals) 50 per cent for Manitoba, (three of six appeals) and the only appeal arising from the Yukon was dismissed. Twenty of 43 appeals from the Federal Court were allowed. Th e Supreme Court provided Law Times with a breakdown of the areas of law in applications for leave to appeal from Ontario, Que- bec, and B.C., that was not pro- vided in the court's special edition bulletin that prompted the look at appeal decisions. Th e breakdown showed that of the 143 applications for leave from Quebec in 2008, only 17 were in criminal law, compared to 42 applications for leave from On- tario that involved criminal law, the highest single component of appli- cations for leave from Ontario. Th ere were a further 14 appli- cations for leave from Ontario that year involving criminal charter cas- es, compared to 13 from Ontario. Eugene Meehan, another Su- preme Court expert and partner at Lang Michener LLP in Ottawa, says the breakdown also showed the variety of areas of law in which the court is hearing appeals has grown over the past few years. 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