Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Wednesday, June 30, 2021, the Supreme Court of Canada is releasing its decision in the reference regarding the monetary jurisdiction of the Court of Québec: Conférence des juges de la Cour du Québec, et al. v. Juge en chef, et al.

In 2014, Quebec’s Code of Civil Procedure was revised and art. 35 increased the upper monetary limit for the Court of Quebec’s exclusive jurisdiction over civil claims from $70,000 to $85,000. The Chief Justices of the Superior Court of Québec filed an application challenging the constitutional validity of art. 35 on the basis it was inconsistent with s. 96 of the Constitution Act, 1867. They initially argued that the Court of Quebec’s jurisdiction could not exceed $10,000 and later changed their position to $55,000. They also challenged the application of the obligation of deference by the Court of Québec on statutory appeals of administrative decisions.

In response, the Government of Québec referred two questions to the Court of Appeal of Québec.  First, whether art. 35 is constitutional, and second, whether it is constitutional to apply the obligation of judicial deference to the appeals to the Court of Québec. The Court of Appeal answered “no” to the first question finding that art. 35 was invalid in so far as it removed from the Superior Court jurisdiction over civil claims between $70,000 and $85,000. It answered “yes” to the second question confirming the constitutional validity of the exercise of judicial deference by the Court of Québec. Parties on both sides appealed as of right to the Supreme Court of Canada.

We’ve been waiting over 275 days for this decision making it the current longest outstanding appeal. I suspect that’s not necessarily a good sign in terms of there being consensus. I’m leaning towards appeal allowed on the first question based solely on the basis of judicial modernization and expanding jurisdiction for lower courts and tribunals. I see this as the sort of thing that could pave the way for greater powers for bodies like the B.C. Civil Resolution Tribunal.

Last SCC Decisions

  • On June 25, 2021, the SCC released its reasons for judgment in R. v. Chouhan, 2021 SCC 26. It wasn’t available for making predictions due to the fact it was a decision from the bench in October. The SCC ruled that changes to the jury selection process and peremptory challenges are constitutional. The decision is notable since it was from the bench, but resulted in five sets of reasons including two in dissent.
  • In terms of appeals that we made predictions on, the Supreme Court of Canada released its decision in Sherman Estate v. Donovan, 2021 SCC 25 on June 11, 2021. This was a unanimous decision authored by Justice Kasirer. 72% of you correctly predicted this outcome.
  • The Court ruled that the sealing orders on the estate files of Toronto couple Barry and Honey Sherman were unjustified.
  • Court proceedings are presumptively open to the public. A person seeking to limit the open court presumption must establish that (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
  • Privacy concerns can justify a sealing order if the dignity of the individuals in question is at risk.

-Tom Slade