It’s a question simmering within the legal community, one that attracts the attention of academics and litigators and that might benefit from the court shedding some light, especially because the numbers of cases the nine judges hear and decide have been trending down for more than a decade, without explanation.
What is “enough” legal guidance is certainly debatable.
But what is not is that the top court’s total output of judgments dropped drastically in 2023 — by 36 per cent — from what was already a comparatively low output in 2022.
Notably, the apex court’s written judgments fell 25 per cent from 2022, a concern because that’s how the Supreme Court carries out its prime mandate of giving legal guidance to the bench, bar and litigants.
All told, in 2023 the court rendered just 27 written judgments as compared to 36 reserved judgments the year before (down 47 per cent from the court’s annual average of 51 written judgments from 2012 to 2021 (and fewer than half the annual average of 66 written judgments from 2002 to 2011.)
(By way of comparison, the U.S. Supreme Court rendered 58 written rulings in the 2022-2023 term, while in 2023 the U.K. Supreme Court issued 54 judgments.)
Overall, in 2023, the Supreme Court of Canada’s total number of judgments, including seven oral rulings from the bench, fell to just 34 decisions from 53 in 2022 and 59 in 2021.
Last year was the Supreme Court of Canada's lowest output since 1947, says University of Alberta law professor Gerard Kennedy, whose study of the 2023 court year will be published in spring by the Supreme Court Law Review.
University of Alberta law professor Gerard Kennedy, Edmonton
Kennedy said the court’s exceptionally low output can be explained, in part, by the fact that Justice Russell Brown stopped participating in the 16 appeals he had heard, which were under reserve when he went on a leave of absence in February 2023 and departed the court in June 2023.
“Because of that, it undoubtedly took them longer to release cases,” Kennedy observed. “There's very good reason to suspect that work he was doing had to be reassigned, which in turn would result in delays in getting everything out. Having said that, they’re simply granting leave in fewer cases. That is the prime reason.”
Paul-Erik Veel, Lenczner Slaght LLP, Toronto
However, members of the bar have been raising questions and concerns around the top court’s intake and outputs for some time, not only with respect to last year and 2022, but also about a longer term downward trend — from 107 decisions in 1997 (63 written judgments), for example, as contrasted with last year’s 34 decisions (27 written rulings).
Law360 Canada asked half a dozen Supreme Court experts their thoughts about the trend. Some do not wish to be named because they practise before the court.
“Among people who are court watchers, there is a lot of chatter asking, ‘what’s going on at the Supreme Court of Canada and why are they deciding and taking on so few cases?” commented one longtime Supreme Court observer. “There’s not a significant drop in [applications for] leave to appeal. Why are they writing in so few cases, meaning why are they deciding so many cases from the bench? That’s a widely held view.”
Speculated the lawyer, “I think the court has lost its way in its understanding of what its core function is, and … that its core function is to decide cases and to lead and clarify the law of Canada. I think you’ve seen an expansion of what I would call ‘extracurricular’ activities — whether that involves [court and judicial] travel, or speeches or other initiatives. All of those are nice, but those are not core functions. I think the court should be taking on more cases and should be peeling back ... its extracurricular activities.”
Few would question the diligence of the judges, who deal with the most difficult legal questions and are known to work long hours.
The job itself “is huge,” commented a civil litigator who practises before the court. “Any judge I've spoken to has said that it's a considerably higher workload than a provincial court of appeal. The people who are on that court are all very serious jurists, so certainly nobody thinks they're being lazy. That's just not the nature of any individual who's on that court.”
Law360 Canada’s review indicates that in 2023 the judges sat on 34 by-leave appeals, about the same as in 2022 and 2021, but down a third from the 51 by-leave appeals the judges heard annually, on average, in the seven years preceding 2020. The court sat for 46 days of hearings in 2023, a record low since 2007 (except for the 2020 pandemic year).
Veel said the number of leaves the Supreme Court granted in 2023 “bounced back” to 40 from 24 in 2022, suggesting the number of court decisions in 2024 is likely to climb to more normal levels.
His latest data-driven analysis, published in a Lenczner Slaght blog post Jan. 24, 2024, titled “Getting Leave to the Supreme Court of Canada: 2023 by the Numbers,” indicates that the percentage of successful leave to appeal applications from litigants who were represented by counsel in 2023 climbed to more than 10 per cent from 7.4 per cent the year before. That increase was driven by a greater number of leave applications being filed, as well as by the court granting a higher percentage of leave applications than the year before, he explained.
The most likely explanation for why the top court granted so few leaves in 2022 is that “the Supreme Court got stingier in granting leaves” that year, Veel concluded, i.e. the judges took fewer opportunities than in prior years to advance the law, and were less likely to grant leave to a case, all things being equal.
(His analysis of the data indicates this explanation is more likely than that leave applications in 2022 were less likely to raise leave-worthy issues of public importance than in prior years; or that there were simply fewer leave applications made than in prior years, thereby reducing the pool of cases from which leave applications could be granted.)
Supreme Court watchers said the reason(s) for the overarching downward trend in the court’s intake of cases and output of decisions is not established, nor has it been publicly explained by the high court (which doesn't say why it grants or denies leave to appeal in particular cases, with the notable exception of the judicial review trilogy, Vavilov v. Canada (Minister of Citizenship and Immigration) 2019 SCC 65).
“It is very clearly a trend that is very easily seen in the court’s own statistics and its annual reports, and it’s a trend without any real explanation,” a Supreme Court analyst remarked. “I would say every explanation that I have heard over the last 10 to 15 years for this phenomenon has not been satisfactory. I have heard the judges say the cases are more complicated now, but I don’t buy that for a second. I do not think that the cases are more complicated now than the landmark cases [were] in the 1990s.”
Law360 Canada asked the Supreme Court of Canada about the trend, including whether the judges see any problem with their shrinking docket and why the judges granted so few leaves to appeal in 2022 and decided so few cases in 2023.
“We do not yet have the final numbers for last year, for example filing dates can fall one year whereas the opening dates (once all the requirements are met) can fall another,” Stéphanie Bachand, the Supreme Court’s executive legal officer, replied by email. “Once we have final numbers for all proceedings, whatever their stage in the process, whether it be the leave stage, the appeal hearing or the judgment, we can respond.”
Kennedy told Law360 Canada he anticipates 2023 will be the nadir of the court’s output.
“I think that one can query whether the Supreme Court is providing enough guidance on legal issues, but I also do think it's a subfield-of-law-dependent question, he said.
“For example, until the court decided the leading case of Vavilov, the court did a lot of work in administrative law, deciding several cases [in that field] per year, a trend which has since tapered off. Even in the Charter, issues are becoming arguably more resolved — I don't want to say it's perfect — but more resolved.”
However, only three of 27 reserved judgments in 2023 “could even plausibly be called private law,” Kennedy remarked.
“There's no question that in private law cases, in particular, issues of property, contract law, tort, corporate law, they're deciding fewer cases,” he said. “While I don't know what's going on entirely, and ... there could be good reasons why they're reluctant [to grant leave to private law cases], three cases to guide all of Canadian private law?” he queried. “And one of them is even barely private law? That's awfully few.”
Veel said that the court’s acceptance of fewer appeals in recent years, and the heavier relative weight of criminal and public law/constitutional law matters on its docket, raise concern among litigators that the court does not focus enough on private law matters.
“There is no shortage of cases that are brought before the court that the court could usefully weigh in on to give guidance to Canadians,” he explained. “There has been a shift away from private law, corporate-commercial, civil-procedure-type issues that a lot of civil litigators, I think, would be interested in getting some resolution on.”
Veel estimated that about 15 per cent of the decisions the court renders in 2024 will address private law, given that about a quarter of leave applications granted by the top court in 2023 were in private law cases.
“That’s unfortunate because there are a lot of private law issues that the court could weigh in on, that they’re deciding not to,” Veel said.
Another experienced civil litigator said the dearth of private law cases is “quite shocking, to me at least.”
“I wish they were taking more cases, or would have been more transparent why they are not taking on more cases," said the practitioner, who litigates before the Supreme Court.
"It would give people a better sense of what cases they're going to grant leave to," the lawyer said. "I think it would inform a public discussion about the role of the court and what they should be doing. There are a lot of things that we could use a lot of clarity on — important cases that they could grant leave to and use their resources — of which they have plentiful — to give guidance to lawyers and everyday Canadians on what the law is. And they're choosing, for whatever reason, not to do that. They’ve just decided to grant leave in exceedingly few cases.”
How can there be fewer cases of “public importance” (the standard for leave to appeal), given the increasing complexity of legal issues and the growth of Canada’s population over the past 20 years, the lawyer asked — such that only 27 cases merited reserved judgments in 2023, as compared to 69 reserved judgments in 2013 and 62 reserved judgments in 2003?
Veel said that although the number of cases decided by the top court has been in longer term decline, the number of pages of reasons for judgment in the Supreme Court Reports has remained fairly steady in recent years — reflecting more disagreement among the judges.
“They’re writing long decisions when it’s necessary,” Veel said. “They’re disagreeing when necessary ... On the cases they’re deciding, they’re doing a pretty good job of explaining why they’re deciding them the way they are and making sure that everyone’s views on the matter are fully aired,” he remarked. “They’re just not doing as good a [job] on the volume of cases that they hear.”
Eugene Meehan, Supreme Advocacy LLP, Ottawa
“Even with the current number of appeals being heard, these judges are working flat out,” observed Meehan, who was an executive legal officer with the top court in the 1990s. “I’ve heard from judges over the years that on the Court of Appeal you think you can’t imagine having to work harder and yet that’s exactly what happens when you get elevated to the Supreme Court."
“I think they’re operating at about a C-plus, B-minus level,” opined another Supreme Court watcher.
“It’s not that they’re not working hard,” Veel said, when asked for his view. “I think I would say ‘C-plus, B-minus’ [is] a little bit unfair. But until they get a higher volume of decisions with written reasons, I wouldn’t give them an A-plus.”
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