One of the topics addressed at the 19^th Congress of the International Academy of Comparative Law in 2014 was “The Prospective Effect of Judicial Rulings” and the proceedings have since been published as a book, Eva Steiner, ed., Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions:

http://www.springer.com/gp/book/9783319161747

Canadian examples of rulings with prospective effect are relatively few, and have been in the context of declarations of invalidity of statutes. Conversely, the Supreme Court of Canada now routinely makes declarations of invalidity with suspended effect, which is a different beast even though it is sometimes confused with rulings with prospective effect. (I think the most recent English discussion of the authority to make prospective rulings is in Re Spectrum Plus Ltd (in liquidation) [2005] UKHL 41, [2005] 2 A.C. 680, where the obiter holding was “maybe we can do that”; Lord Nicholls at [22] incorrectly equated these two kinds of rulings.) The constitutional or logical basis of the order whose effect is suspended remains somewhat unclear at least to me. My understanding is that there are examples in other jurisdictions, although sometimes with a basis in a constitutional text.

In Hryniak v Mauldin 2014 SCC 7, the appellant got leave to appeal from the ONCA on an application that was partly based on the argument that the latter court had engaged unlawfully in prospective overruling in a private law matter. However, the SCC did not address this issue.

Lionel

 

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

 

 

Angela Swan Counsel   T  416.865.4643 F  416.863.1515 E  aswan@airdberlis.com Brookfield Place • 181 Bay Street Suite 1800 • Box 754 Toronto ON • M5J 2T9 • Canada www.airdberlis.com

 

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