Dear Angela
It is not only in the USA that there has been some flirtation with 'prospective over-ruling'. One well known example here in England & Wales is the abolition of advocates' immunity from suit by the House of Lords in Arthur JS Hall v Simons [2002] 1 AC 615 - see most directly per Lord Hope at 726H, with others speaking in terms of 'abolition' etc.
As for the conceptual difficulties, there is a characteristically incisive discussion of these by Lord Goff in Kleinwort Benson v Lincoln City Council [1999] 2 AC 349 at 376A-379F (the context being the recognition by the House in that case of mistake of law as a ground for claiming repayment of money paid under a mistake, and the resultant difficulty of assessing whether a paying party's thought processes at the time of payment can sensibly be characterised as having been affected by a mistake of law when they were informed by what everyone thought and understood the law to be at the time). These are also addressed in other speeches, including Lord Lloyd at 393A-394E, and Lord Hoffmann from 398E; given Lord Hope's overt adoption of prospective over-ruling in Arthur JS Hall loc cit, it is also interesting to read what he said a couple of years earlier in this case, at 411B-H.
Best wishes
John
John Randall QC
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Sent: 20 October 2016 19:31
To: obligations@uwo.ca
Subject: Cases Remanded for Reconsideration
In the list of decisions dealt with by the Supreme Court of Canada and released this morning are three which do something which is not often done by an ultimate court of appeal. (This fact may be due to my inattention to what happens elsewhere; there are several case in Canada. See, e.g., R. v. Johnston, 2016 BCCA 3, and Sanchez v. Canada (Citizenship and Immigration), 2014 FCA 19.) The Supreme Court had been given power by an amendment of the Supreme Court Act in one of the horrible omnibus bills that the Government of Canada likes, Criminal Law Amendment Act, 1994, S.C. 1994, c. 44, s. 99, to remand cases to a provincial Court of Appeal for reconsideration. The Supreme Court Act now provides:
43(1.1) Notwithstanding subsection (1), the Court may, in its discretion, remand the whole or any part of the case to the court appealed from or the court of original jurisdiction and order any further proceedings that would be just in the circumstances.
The three cases remanded today, Sankar v. Bell Mobility Inc., 2016 ONCA 242, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246, and Acciona Infrastructure Canada Inc. v. Allianz Global Risks US Insurance Company, 2015 BCCA 347, were sent back to the respective courts of appeal for reconsideration in the light of Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, a decision that has been noted on this listserv.
The orders of the Supreme Court, an appeal committee consisting of McLachlin J., Wagner & Gascon JJ., were identical. In the Sankar case the order was:
Pursuant to s. 43(1.1) of the Supreme Court Act, the case forming the basis of the application for leave to appeal from the judgment of the Court of Appeal for Ontario (Toronto), Number C60176, 2016 ONCA 242 (CanLII), dated April 4, 2016, is remanded to the Court of Appeal for Ontario for disposition in accordance with Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37 (CanLII).
One of the major problems of the judicial process is created by the fact that judicial decisions are in an important sense retroactive. A client may have relied on a legal opinion which, when it was given, was indubitably correct, but may find itself zapped by a decision of a supreme court or court of appeal that changes the law. This issue has received a workout in the United States with the concept of “prospective overruling”. To the best of my knowledge Canadian courts have not ventured down this road. These three decisions open interesting avenues of exploration. Can a party who did not seek leave to appeal now move to have its case reconsidered by a court of appeal?
I shall not now take time to explore this issue but I think that it opens a can of worms.
With best wishes,
Angela Swan
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Angela Swan
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