Law Times

Law Times • June 20, 2016 Page 7 www.lawtimesnews.com Using judicial leave to control the floodgates BY MICHAEL DEVERETT T he law must keep pace with changes in so- ciety. New remedies may be required to ad- dress new concerns. However, creating new remedies sometimes presents judges with a dif- ficult dilemma. How do you grant an applicant's request to carve out a new remedy without creating other un- desirable effects beyond the scope of the case before the court? Short of creating a new remedy, there still may be cause for concern that a particular remedy may have ad- verse consequences. The issue that a judicial decision will spring open the f loodgates is no stranger to the courts. A recent search of the word "f loodgates" on CanLII revealed more than 800 cases across Canada, most of which deal with the argument that a particular remedy should be avoided to prevent a torrent of litigation from f looding the courts. Take the 1992 case, Canadian National Railway v. Norsk Pacific Steamship Co. In the case, a barge, being towed down the Fraser River by two tugs, struck a railway bridge. One of the is- sues considered by the court was whether the f loodgates would be opened to unlimited liability. Or examine B. (R.) v. Children's Aid Society of Metropolitan Toronto. In this case, for religious rea- sons, parents objected to their premature child receiv- ing blood transfusions. The court considered whether opening the f loodgates to require the Attorney General to pay the other party's costs would encourage marginal applications for constitutional challenges. Then there's Henry v. British Columbia (Attorney General), where the plaintiff was convicted of 10 sex- ual offence counts. The Court of Appeal quashed the convictions and entered acquittals on all counts. The plaintiff sued for injuries allegedly suffered as a result of conviction and imprisonment. In this case, the court expressed concerns that there was risk of opening the f loodgates to scores of marginal claims where "given the absence of a liability threshold, a claim alleging a rela- tively minor breach with minimal harm to the claimant might well survive a motion to strike at the pleadings stage, and could lead to an award of damages." Is there any way to permit a particular remedy, and, at the same time, address concerns about opening the f lood- gates and drowning the courts with marginal claims? Many years ago, the legislators developed a method to control the f loodgates with respect to specific remedies known as "leave." Before applicants may proceed with particular types of litigation, permission must be grant- ed by the court. Certain types of appeals require leave, including appeals to the Supreme Court of Canada, ap- peals of interlocutory orders, and costs-only appeals. Applicants in these cases must satisfy specific criteria be- fore permission is granted for their appeals to be heard. These criteria include national importance, conf licting decisions, and otherwise. Even if criteria is satisfied, the appellate courts in these cases have discretion whether to permit the appeal to proceed. Reasons for granting or refusing leave to appeal are usually not given. Discretion is unfettered and the f loodgates are controlled. So if the legislators control the f loodgates with leave, why not allow judges to do so as well? Why not apply the concept of statutory leave to judge-made law? When faced with concerns that their decisions may open the f lood- gates, judges may impose a requirement of judicial leave. Rather than deny an applicant a remedy simply because the effect of so doing may open the f loodgates, judges may address this concern with judicial leave. Judges may state in their reasons that they are granting the applicant leave to pursue a particular remedy, and may even wish to indi- cate the terms of the leave that was granted. The terms of the judicial leave may include a standard of proof higher than balance of probabilities, or some other criteria that will address concerns about opening the f loodgates. This worry has been referenced in cases such as Downtown Eastside Sex Workers United Against Vi- olence Society v. Canada (Attorney General), in 2012. "The concern about the need to carefully allocate scarce judicial resources is in part based on the well- known "f loodgates" argument," said Supreme Court of Canada Justice Thomas Cromwell, in his ruling. "This factor is not concerned with the convenience or workload of judges, but with the effective opera- tion of the court system as a whole." It was also referenced in Hy & Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. On- tario (Attorney General), in 1993. "Courts have traditionally seen it necessary to im- pose restrictions on standing to control the proper use of the forum and its resources. Underlying these re- strictions are a number of rationales which have been invoked, depending on the context, when the issue of standing has come before the courts," said Supreme Court of Canada Justice John Major in his ruling. "Three major concerns are typically identified: the proper allocation of judicial resources; the prevention of vexatious suits brought at the behest of mere 'busybodies'; and the particular requirements of the adversary system. The first category includes such concerns as fears about a multiplic- ity of suits, otherwise known as the 'floodgates' argument." Judicial leave itself may result in unintended adverse consequences. The granting of leave is discretionary. The rigorous standards of decision-making do not apply to the granting of leave. Reasons for refusing leave are not required. The exercise of discretion in leave applications may lead to inconsistent rulings. Potential applicants may not wish to incur legal expense when faced with the risky prospect of having to obtain leave. However, these and other adverse consequences may be addressed by subsequent judges who may determine that judicial leave is no longer required for a particular remedy. Judges must be cautious of every step taken in the di- rection of making new remedies, or making decisions that may result in adverse consequences. Perhaps, judicial leave may relieve some concerns and allow judges greater f lex- ibility in finding the right remedy in a particular case. LT uMichael Deverett is a litigation lawyer with more than 30 years' experience resolving estate, family, and other disputes. He can be reached at info@deverettlaw.com. COMMENT u SPEAKER'S CORNER How Confederation debates shaped Canada today A s of July 1, Canada will enter its 150 th year. I will mark our sesquicentennial through a series of four columns in the coming months. This one will review the Confederation debates of 1865. The remaining three will be devoted to each of our legal traditions: indigenous law, civil law, and common law. Why did the three colonies of United Canada, Nova Scotia, and New Bruns- wick decide to get together anyway? It was an unlikely union in many ways. The leaders of the Canadas and the Maritimes hardly knew each other, and the two areas had little trade between them. The Cana- das' trade links were with Michigan, Ohio, and New York; the Maritimes' with New England and the West Indies. Central Canada's rail link with the Atlantic went to Portland, Maine, not to Halifax or Saint John. While the American Civil War sug- gested the need for more co-operation on defence, the Atlantic provinces needed na- val defence, which only Britain could sup- ply for the foreseeable future. And finally, with the westward expansion of Confed- eration already in the air, the interests of the indigenous peoples of the West would have to be dealt with in some way. There were both pragmatic and more vi- sionary reasons evident in the 1865 debates in the legislature of the United Province of Canada. The added population of the Mari- times represented a larger market for central Canadian goods, for starters. Nova Scotia and New Brunswick amounted to nearly 20% of the new dominion, about the same proportion as the Prairie provinces do today. The relative absence of trade between the Canadas and the Maritimes could be portrayed as an un- exploited opportunity. George Brown predicted that a customs union would lead to the wares of the Canadas being carried "un- questioned into every village of the Maritime Provinces" while they "shall with equal freedom bring their fish, and their coal, and their West India produce to our three millions of inhabitants." Nova Scotia's coal, the key energy source powering the first industrial revo- lution, has been suggested as a critical fac- tor driving Confederation. But the mari- time ship-building industry, at the height of its expansion in the 1860s, was also of interest to the Canadians. With the ad- dition of this capacity, Canada would be the third-largest maritime nation in the world, after Britain and the United States. Beyond the economic advantages of union, the people of the Maritimes were portrayed as possessing shared ties, pri- marily those of language and the com- mon law, that would make them desirable partners. Interestingly, most of the Quebec representatives did not regard the decision to join a larger, mostly English-speaking polity as a threat; they were satisfied with the carrot that they would have control over their own institutions, even if their in- f luence in an eventual federal government would be some- what diluted. Opinion within the Atlan- tic provinces was more divid- ed than within the Canadas. Newfoundland did not join in 1867 and decisively reject- ed Confederation in an 1869 election. Prince Edward Island joined in 1873 when promised Canadian money to buy out its large landlords. Nova Sco- tia and New Brunswick were doing relatively well in the era of wooden ships and had no obvious impetus to join the union; but some could see that the age of steam and the landward linkages fostered by rail transport would reshape their economies and leave them vulner- able on their own. The imminent ending of the Reciprocity Treaty with the United States in 1866 also meant that both the Maritimes and the Canadas were casting about for more markets for their produce and goods. What is perhaps most surpris- ing in the Confederation debates in the Canadas is the confidence expressed in westward expansion. George Brown ar- gued that the legislators were aiming to "lay the foundations of the structure that [would] one day extend from the Atlantic to the Pacific." No railway yet went west of Sarnia, and the only European settlement between the Great Lakes and the Rockies was at the small community of Red River. The British North American colonies were relatively poor and undeveloped, but they were highly conscious of belonging to a great empire nearing the zenith of its power. It was this that inspired their con- fidence and encouraged them to dream big dreams. They had no qualms about relying on British defence, nor on the Brit- ish capital needed to develop the natural resources they continually proclaimed to be "inexhaustible," or the infrastructure required to exploit them. Unfortunately, the role of indigenous peoples in this westward expansion was never alluded to in the Confederation de- bates. Certainly, it was never framed in terms of a partnership. The members from Canada West assumed that their own ex- perience would be replicated as the nation moved west: The interests of native peoples would be dealt with by treaty, clearing the way for European settlement but giving the original inhabitants no say in how future development would proceed and no eco- nomic base. Indeed, the Robinson-Huron Treaty of 1850 had done just that with re- gard to a large swath of northern Ontario. That is why, 150 years later, while there is much to celebrate about the "deal" con- cluded in 1865 and enacted in 1867, there is also so much unfinished business. LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. That's History Philip Girard

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