This Canadian colleague doesn’t know, but would really like to.  For the reasons stated by Matthew, a norm (?) to the effect that the SCC’s obiter dicta ought to be treated like their ratio would be deeply problematic.  The whole point (and beauty) of the ratio/dicta distinction is that it reserves binding force to the parts of judgments that “matter”, i.e. that have real and immediate effect on the lives of the people actually before the court, the rest therefore falling outside the realm of adjudication proper.  Eliminating that distinction does turn judges into legislators, despite their lacking electoral legitimacy. Anybody else that could point out a case to that effect?

As for the role of apex courts in confederate nations, it is worth noting that Quebec’s difference in matters of private law did result in the Quebec Court of Appeal being, at a certain time, treated as the de facto apex court in matters of Quebec private law.

Best,

Catherine

 

From: Lucas Clover Alcolea <lucas.cloveralcolea@monash.edu>
Date: Monday, July 7, 2025 at 10:15 PM
To: Peter Wills <pwills@jd17.law.harvard.edu>
Cc: Frederick Wilmot-Smith <frederick.wilmot-smith@all-souls.ox.ac.uk>, Norman Siebrasse <norman.siebrasse@gmail.com>, Jason W Neyers <jneyers@uwo.ca>, MHoyle <MHoyle@oeclaw.co.uk>, sbeswick <sbeswick@sjd.law.harvard.edu>, obligations <obligations@uwo.ca>
Subject: Re: Mitigation of lease repudiation at the SCC

I mean it's 50/50 whether the SCC hearing more private law cases would be a good or a bad thing for the development of private law in Canada.

 

Re intermediate appellate courts being able to decide how they think the SCC would, this was also famously suggested (or at least something similar) by Denning in England and McHugh in Aus, the problem is that it would make the law significantly more uncertain. It's fairly clear that judges would just use that as an escape route to overturn any decisions they didn't like, thereby leaving the law in flux until the SCC undid their decisions (or not). Of course the SCC wouldn't, in any event, be able to hear all such cases. All that said, I'm not sure Canadian law is suffering from having too many old cases applied, or a lack of judicial creativity, instead I think it has the opposite problem.

 

Also it's worth noting that (I think?) obiter dicta of the SCC are also binding, so that probably loosens the state decisis straightjacket somewhat (as it allows the SCC to influence cases even without deciding x or y in the ratio). 

 

 

Ah, in fact, hasn't the SCC said that old precedents don't need to be applied if there are changed social circumstances etc? Can't remember the exact case, but I'm sure Canadian colleagues would know 😅 in any event that feeds into the uncertainty point...

 

All the best,

Lucas 

 

On Tue, 8 July 2025, 10:32 Peter Wills, <pwills@jd17.law.harvard.edu> wrote:

Some comments on the subject of "which cases does the SCC hear":

1. As David said, the courts of appeal can grant leave per s 37 of the Supreme Court Act, but do so very rarely. The last time I've heard of this happening was 20 years ago, in HL v Canada (Attorney General), 2005 SCC 25, (a case about whether the appellate standard of review in Saskatchewan was the same as in other provinces, because the statute was different). Supposedly it "fell into disuse because courts of appeal decided that [the SCC] should determine its own workload": Richter & Partners Inc v Ernst & Young, [1997] 2 SCR 5 at para 4.

2. As Norman said, the courts sometimes signal to the SCC that they should hear the case without explicitly invoking s 37 of the Supreme Court Act. As a further example to those Norman gave, the SCC granted leave in Chandos Construction Ltd v Deloitte Restructuring Inc, 2020 SCC 25 after the dissent opened with "This case presents challenging contract and bankruptcy law issues of national importance." (the case concerned the interaction of the anti-deprivation rule in bankruptcy with a contractual provision that triggered upon bankruptcy; the SCC ultimately dismissed the appeal 8-1). Sitting 5 at the CA on a case is also a significant signal that the case is of importance to the CA and may also be of importance to the SCC.

3. On the merits of whether private law should be heard more, the division of powers makes a material differences between Canada and the UK on the relative importance nationally between public law and private law:
- Many of the most important public law areas (constitutional, criminal) are federal or affect both federal and provincial governments (administrative, aboriginal).
- By contrast, purely common law private law generally will not affect the 23% of the population in Quebec.
- Interesting questions that arise due to the interaction between private common law and statutes are often province-specific, since the statutes that create the interaction are often provincial. (Provinces have authority over "property and civil rights in the province") While the provinces do have mechanisms to harmonize their laws, these are not often used. (Section 94 of the Constitution Act, 1867 allows provinces to hand this power over to the feds to make laws on property and civil rights, but it has never been invoked. And less dramatically, provinces tend not to just all adopt the same legislation. The Uniform Law Conference of Canada is a body meant to help with that, but if one looks at their table of which laws are implemented, one sees many voids [pdf].)

4. On less merits-based factors, one might note that none of the current bench of the SCC had a practice that focused on private common law or even civil/commercial litigation in common law Canada. Going through them all:
- Chief Justice Wagner and Côté and Kasirer JJ all practised in Quebec;
- Justice Karakatsanis was originally known for her work as a civil servant, running tribunals and eventually becoming head of the Ontario Public Service;
- Justice Rowe practised international law and eventually became head of the Newfoundland and Labrador Public Service;
- Justice Martin had taught a variety of private law subjects when a professor, but her litigation career was focused on criminal and constitutional law;
- Justice Jamal's private practice days included commercial litigation but I understand he was known for his constitutional and public law work;
- Justice O'Bonsawin's prior work focused on the mental health system, labour and employment, human rights, privacy, indigenous law, and a slice of criminal law;
- Justice Moreau practised "primarily in criminal law, constitutional law, and civil litigation".

Moreover, all of the English-Canada judges had some level of criminal experience from their time on the trial court or (save for Justices O'Bonsawin and Moreau) on the Court of Appeal.

If one models the justices as being more likely to give leave to cases they would have thought were important before being elevated to the Supreme Court, it seems not a surprise that private law cases might have a harder time getting leave than public law cases.

5. In response to Matt's musing that the dearth of appeals to the SCC may be  because the UKSC sits 5 and the SCC tends to sit 9 on appeals that are not criminal as of right appeals: at least in recent years, it has not seemed like the SCC has been "at capacity". The caseload of the SCC has been higher historically than it is now.



Peter


On 2025-07-07 6:39 p.m., Frederick Wilmot-Smith wrote:

This might be matt's point but I'm not sure I see what the issue is.

 

Is it that the SCC wrongly thinks private law cases don't raise issues of national importance? 

 

Or is it that that are right in their analysis of importance (ie the rules aren't nationally important) but are applying the wrong standard for PTA? 

 

Or something else? (Jason's proposal seems to come from a diagnosis that the rule is right and so is the application but that the results are bad so intermediate courts should get some leeway to overrule scc.)

 

 

On the substance, I agree with Matt and Jordan: to an English lawyer’s eyes, the application confuses debt with damages. The pta memo (which is on the account website sam linked to) tries to answer this at para 35 (discussing the law in BC, which seems to have got it exactly right; as indeed Laskin J seems to have got the position right in Highway Properties). The appellants seem driven to say that actions in debt are confined to loans, which is perhaps not the strongest argument I’ve ever seen. 

 

It is a little surprising to me that the appellants do not seem to mention White & Carter and Reid’s weird exception. Wouldn’t that be helpful to them? The answer might be that another problem would emerge if they did: from a quick skim, the lease can be sublet. The interest in keeping the lease open may therefore be the same reason the lessee doesn’t want to sublet? Whatever the position: I am not sure I understand what injustice the lessee thinks it is suffering. 

 

Sent from my mobile device

 

On 7 Jul 2025, at 23:05, Norman Siebrasse <norman.siebrasse@gmail.com> wrote:



Sometimes the FCA just says "This is an issue that should really be looked at by the SCC." For example, in Cobalt v  Bayer 2015 FCA 116 [101] the FCA said that the current law on the issue of patentability of methods of medical treatment was unsatisfactory and "calls for full consideration by this Court or the Supreme Court in a case where the issue is squarely raised on the facts." It reiterated this in Hospira v Kennedy Trust 2020 FCA 30 [53], though again saying that case was not appropriate as the issue was not squarely raised on the facts. The SCC has since granted leave in another case raising the issue, Janssen v Pharmascience 2024 FCA 23, in which the successful applicants for leave emphasized these statements.  

 

On Mon, Jul 7, 2025 at 6:52 PM Jason W Neyers <jneyers@uwo.ca> wrote:

One solution would be to empower the Courts of Appeal to decide cases as they legitimately believed they would be decided by the modern SCC in light of changed doctrinal position that the court finds itself in. I believe that that rule would be similar to the rule the US federal courts use on matters of state common law (but I'm happy to be corrected by our American friends).

 

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From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Monday, July 7, 2025 5:29:04 PM
To: Jason W Neyers <jneyers@uwo.ca>; sbeswick <sbeswick@sjd.law.harvard.edu>; obligations <obligations@uwo.ca>
Subject: RE: Mitigation of lease repudiation at the SCC

 

I do see the problem there (although as I say, I’m not sure I see here a legal issue the court can or should solve!). It is rate here for the CA to grant permission to appeal to the UKSC, but I suppose we are lucky in the UK to have a Supreme Court which is relatively keen to grant permission on private law matters (although, as they tend to sit as five judges rather than nine that does allow them, as UKSC and UKPC, to hear twice as many cases as the SCC does based on recent trends).

 

Matthew Hoyle

Barrister

One Essex Court

 

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender.

 

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From: Jason W Neyers <jneyers@uwo.ca>
Sent: 07 July 2025 22:13
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>; sbeswick <sbeswick@sjd.law.harvard.edu>; obligations <obligations@uwo.ca>
Subject: Re: Mitigation of lease repudiation at the SCC

 

Dear Matthew,

 

In regard to precedent,  in Canada lower courts cannot give permission to appeal, only the SCC (or statute) can, and the SCC does so only if the case raises issues of national importance. 

 

What do you do then with "old" precedents in areas of Law, like private law, where the SCC doesn't often give leave?

 

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From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: Monday, July 7, 2025 3:44:36 PM
To: sbeswick <sbeswick@sjd.law.harvard.edu>; obligations <obligations@uwo.ca>
Subject: RE: Mitigation of lease repudiation at the SCC

 

Thanks Sam, interesting for a number of reasons:

 

1. To English eyes at least, there is a prior question here: why is this a question of mitigation at all? As long as the landlord continues to provide exclusive possession of the property to the tenant, then they should be paid the agreed sum (i.e. rent) for as long as they are meeting the condition for payment. There is no question of mitigating a debt, because it is simply inconsistent with the nature of the remedy, which is unconnected to loss and instead involves the insistence on a primary right.
2. It is only if the law requires the landlord to accept repudiation, and give up their ability to earn the price, that the claim becomes one for damages, which we here find in the “legitimate interest” case law from White and Carter v McGregor. But that doesn’t seem to the way its being analysed here.
3. Looking at it that way, the question is not whether commercial landlords are an exception to the mitigation rule, but whether the law requires them to accept repudiation. I don’t think the law is incoherent in saying that it doesn’t because of the nature of a lease as a grant of a proprietary right at the outset. It could lead to odd situations: for example, if one tenant paid an upfront premium in exchange for a grant of a ten-year lease, while the other agrees to pay periodically. It can’t be that the party paying a premium get his money back because half-way through he decides he doesn’t want the property, surely?
4. This really demonstrates why the language of “duty” to mitigate is dangerous. Mitigation in English law is simply a limit on the damages recoverable. It is not a duty in any sense: it isn’t even a ‘requirement’ or ‘pre-condition’,  because a claimant who does nothing to mitigate will still be able to recover damages as if they had mitigated (which may in some cases be nothing, of course)
5. If it is conceived as a ‘duty’, it is easy to see why one can start applying that to situations where it really ought not to be applied. A freestanding duty to mitigate could be imposed on a creditor who doesn’t accept repudiation and insists on payment.

 

As to precedent, isn’t it quite literally the point of having a sophisticated system of stare decisis and doctrines of ratio and obiter to decide when a lower court can change/develop the law, and when it can’t? If the lower court feels bound by the decision of the earlier court even though it would wish to decide the matter the other way, then surely the right approach is to say that is the reason for the judgment and to grant permission to appeal?

 

Matthew Hoyle

Barrister

One Essex Court

 

This message is confidential and may be privileged. If you believe you have received it in error please delete it immediately and inform the sender.

 

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From: Samuel Beswick <sbeswick@sjd.law.harvard.edu>
Sent: 07 July 2025 19:28
To: Obligations <obligations@uwo.ca>
Subject: Mitigation of lease repudiation at the SCC

 

ODGers may be interested in a case on which the Supreme Court of Canada recently granted leave, which will revisit whether the doctrine of mitigation applies to the repudiation of commercial leases.

 

https://www.scc-csc.ca/cases-dossiers/search-recherche/41665/

 

The appellant tenant challenges a common law doctrine that purports to shield landlords in the commercial leasing context from the general principle of reasonable mitigation. From the appellant's leave application:

 

1. In Canada, plaintiffs owe a duty to mitigate damages. This is a foundational principle that has been a part of Anglo-Canadian law for at least a century, requiring a plaintiff to act like a “reasonable and prudent” person to avoid losses caused by a wrongdoing. In Ontario and British Columbia, the Courts of Appeal have said that there is one class of plaintiff exempt from this doctrine: commercial landlords. The Quebec courts disagree: there, commercial landlords do have a duty to mitigate, in the face of a repudiation by a tenant. American courts, faced with the exact same issue, have consistently changed the common law to impose a duty to mitigate on landlords.

2. In this case, the Applicant, Aphria Inc. (the “Tenant”), signed a ten-year lease. Early into its term, as a result of a business combination, it did not have a need for two duplicate offices. It therefore repudiated the applicable lease. It made repeated, good faith efforts to send interested tenants to the Respondents (the “Landlords”). The Landlords refused to meet with them, refused to take any steps to mitigate, refused to accept the repudiation, and made clear they preferred to sue the Tenant every two years for past rent. The Landlords are not incapable of mitigating, nor do they say it is too onerous to mitigate. They simply refuse to mitigate, because they say the law does not require them to do so.

3. This anomalous situation is not a product of sound law, logic, or equity. It is a product of history, where antiquated property law concepts of a lease being a “conveyance”, led to that result. And two lines of obiter dicta from Justice Laskin, as he then was, on a five-member bench of this Court in the 1971 decision, Highway Properties v Kelly, Douglas & Co., have been used by lower courts as a jurisprudential straightjacket, fossilizing the common law to a doctrine that predated the law of contract in the Commonwealth. 

 

More generally, the appeal invites the SCC to clarify the scope of judicial law-making power of lower courts in private law matters. From the final section of the leave application:

 

50. Finally, an issue that transcends the interests of these parties, and beyond the commercial leasehold context, is the issue of the development of the common law. As can be seen from the decisions below, appellate courts continue to struggle with the extent to which they are permitted to develop the common law, even to be consistent with other Supreme Court decisions. While the Motions Judge below followed the Canada v Craig approach of offering “comments” on the “problematic nature” of the precedent, the Court of Appeal simply refused to engage at all (not commenting on whether he was right or wrong on these points), saying nothing more than if the law is to be changed, it is for the Supreme Court to do it. This approach is unsatisfactory, in that it provides no appellate commentary for the Supreme Court to engage on the issue, leaving it not as the court of last resort, but the court of only resort and essentially, of first instance.  

 

One to watch!

 

Warm wishes,

Sam

 

Samuel Beswick

Assistant Professor | Peter A. Allard School of Law

The University of British Columbia | Allard Hall, Room 444

1822 East Mall | Vancouver, BC, Canada V6T 1Z1

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Norman Siebrasse
Professor of Law
University of New Brunswick
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Peter Wills

Harvard Law School / King's College, University of Cambridge

JD / LLM Class of 2017

pwills@jd17.law.harvard.edu

Norman Siebrasse
Professor of Law
University of New Brunswick
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