The Lawyers Weekly - October 1, 2010

SCC
Continued From Page 1

schedule could be lighter in 2011-2012 than it has been in 2010 when the judges sat just half of the available hearing days during the winter session, did not hear cases at all in June, and still have open slots in the fall term which starts next month.

“The court is less accessible than it has been at any time in its modern history since 1975,” maintains longtime Supreme Court agent Henry Brown of Ottawa’s Gowlings.

Brown has been methodically
tracking the court’s leave grant-
ing practices for 28 years. In that
regard, “we are looking at a
35-year-low at least,” Brown told
The Lawyers Weekly. “It can no
longer be called a ‘blip’. This is a
serious and dramatic change
over half a decade and I guess
the profession should be asking
the court, and the court should
be telling us, what the problem
is,” he said. “It’s definitely a prob-
lem for the Bar. There are many
excellent lawyers, with long
experience in the Supreme Court
of Canada, who are mystified
with some decisions refusing
leave and it’s not just sour grapes.
These are people who know
what a good case looks and feels
like, and are walking away shak-
ing their head.”

“There are areas of law that the court could have, should have, granted leave in, and did not.

CONTENTS

“I’d say that it is a general
mystery to many in the legal pro-
fession and the academy as to
the explanation for the drop-off
in the court’s output, both in
terms of the number of cases
that they are taking in…and the
number of decisions,” Dodek
said. “Because if you look at the
output in the mid- to late-1990s
where it was [more than 100]
cases per year,…and then in
recent years the court has issued
fewer decisions and there is no
clear explanation as to the rea-
sons therefore.”
Osgoode Hall law professor
Patrick Monahan said he’s not
sure what the court’s optimal
caseload should be, although not
long ago it was between 75 and
80 appeals.

“So I guess the question is:
‘Does the court feel that that
number is not
the appropri-
ate number,
and that some-
how there
needs to be a
smaller num-
ber of cases
dealt with
annually?’ I
think this an issue that would
merit some discussion in the
profession and, more broadly,
in the public domain in terms
of what the court feels is the
appropriate level of (a) leaves
that are granted, and [(b)] the
number of cases that the court
feels is appropriate to hear dur-
ing a year.”
The court’s published statis-
tics confirm that the number of
leave applications granted has
been on the decline over the past
decade—from a high of 84 in
2000 to a low of 51 in 2008.

New statistics obtained from the court at press time indicate that the number of cases granted leave bounced back up to 62 in the 2009 calendar year—a success rate of almost 12 per cent.

But most recently, by Brown’s count, the court has tightened further, granting permission to appeal in only 48 cases of the 507 leave applications the judges decided between from Sept. 1, 2009 and Aug. 31, 2010 ( nine-per-cent success rate).

“The number of [leave] applications [in 2010] is about par

Monahan

for the course—it runs around
500 to 600 every year,” Brown
observed. “What’s changed, and
changed dramatically, is the
number of successful applica-
tions, which is now down to 48.
This is continuing a trend which
started four or five or six years
ago when the court broke from
its traditional long-term average
of [granting leave in] around 75
cases, and started to dip into the
range of 60 cases per year, and
now it’s down below 50.”
Meehan said he has seen the
court turning away meritorious
cases in, for example, the burgeon-
ing area of class actions. “There
are areas of law that the court
could have, should have, granted
leave in, and did not,” he said.

“There are areas of law out
there that lawyers in Canada
would like to know more about,…
that are uncertain, where there
is increasing and unnecessary
litigation that the court could
fulfill its national role and give a
more nuanced, more compre-
hensive guidance upon.”
Litigator Freya Kristjanson, of
Toronto’s Cavalluzzo Hayes, said
there is a pressing need for more
guidance on administrative law.
“If we don’t get leave granted in
these cases…you get a system
which does not serve citizens,
Court granting leave to assist
lawyers across the country, and
more importantly citizens and
businesses across the country, in
having jurisprudence which
applies to us equally as it should.”
Osgoode Hall law professor
Jamie Cameron said she sees no
shortage of issues of national
importance. “I think the drop
off in caseload is troubling for a
few reasons,” she said. “An
initial point is that there is an
access to justice issue…but
beyond that I think there is a
bit of a question about leader-
ship here, and the court’s will-
ingness to engage with the law,”
she explained. “You want the
court to be visible as an institu-
tional leader, and as an intel-
lectual leader, in developing the
law. And if we are reaching a
point where there are so many
fewer cases, that leadership role
is flagging and…one wonders
whether the court is as willing
to engage with the law as it
should be.” 

Kristjanson

BC faces its limitations

The government of British Columbia is asking lawyers to respond by Nov. 15 to its proposals for updating the province’s 1975 Limitation Act.

“Finding the Balance,” a 135-page white paper unveiled Sept. 15, includes draft legislation, as well as policy analysis. The proposals build on the results of consultations on a green paper issued by the Ministry of the Attorney General in 2007. Some recommended changes include: moving from a variety of basic limitation periods, based on the type of legal action, to a single two-year basic limitation period for all civil claims; moving from a general 30-year ultimate limitation period to a single ultimate limitation period of either 10 or 15 years, and making the legislation more certain as to when the ultimate limitation period starts.

The six-year ultimate limitation period for negligence claims against doctors, hospitals and hospital employees would be scrapped. Rather, all lawsuits would be governed by a single ultimate period of either 10 or 15 years.

NEWS

IMPAIRED DRIVING rules violate the Charter, say two Quebec courts ...........................................1

Municipal Law
WHEN COUNCILLORS sit on two
councils ...................................... 14

You Tube law library

A DROP in output worries observers of the Supreme Court of Canada .........................................1

CIRCULAR APPEAL process lessens charm of heritage properties ................................... 15

VANCOUVER’S INNOVATIVE

community court is evaluated ...... 3

BUSINESS & CAREERS

THE HST challenge is thrown out by a B.C. court ............................. 7

A LOOK at the past, present, and future of legal education in Canada — Part 2 of a 3-part series........ 21

OPINION

JEFFREY MILLER....................... 5

FOCUS

Information Technology FEDS RELAUNCH anti-spam legislation ..................................... 9

HOW TO prepare a domain name complaint ................................... 10

DEPARTMENTS

PIPEDA CELEBRATES its tenth anniversary ................................. 11

Announcements. . . . . . . . . . . 24

Careers . . . . . . . . . . . . . . . . . 24

Classified Ads . . . . . . . . . . . . 19

Lawddities. . . . . . . . . . . . . . . 15

Legal Briefs. . . . . . . . . . . . . . .2

Names in the News. . . . . . . . . 4

Weekly Digest. . . . . . . . . . . . 16

The Ontario Bar Association’s charitable arm, the Advancement of Legal Education and Research Trust (ALERT), has launched a series of bilingual educational videos on You Tube. The first videos deal with Small Claims Court and pensions and benefits law. They can be seen at www.youtube.com/user/alertoba

Toronto lawyer and ex-OBA president James Morton walks viewers through Small Claims Court in a six-part series that covers such topics as how to make a claim and fill out the claim form; serving a claim; defending a claim; settlement conferences; going to trial; and enforcing an order. The video series on pensions and benefits law targets employees and employers. Issues covered include saving for retirement under defined contribution pension plans, rules surrounding access to pension benefits and pension division issues on marriage breakdown.

THE LEGAL obligations of Internet service providers........................ 11

Animal welfare

THE COURTS wrestle with business method patents........... 13

RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS

PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D. BRAN T LATHAM, B.A. SC. B.SC. (CHEM. ENG.), LL.B. DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B.

JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.

TRADE MARK AGENTS LEONARD GROVE (1930-2006)

MARTA TANDORI CHENG

2 BLOOR ST. EAST, SUITE 1800

TORONTO, ONTARIO M4W 3J5

TELEPHONE: (416) 961-5000

FAX: (416) 961-5081

E-MAIL: riches@patents-toronto.com ESTABLISHED 1887

We want to hear from you! E-mail us at: tlw@lexisnexis.ca 

Manitoba recently proclaimed animal welfare reforms that increase protection for livestock and companion animals.

The Animal Care Amendment Act establishes additional regulations for the safety and care of livestock and companion animals while safeguarding commercial site operators and veterinarians who report offenders.