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Lawyers stumped over SCC application rates

|Written By Tim Naumetz

OTTAWA - A significant difference in the rate of applications from Ontario and Quebec for leave to appeal to the Supreme Court of Canada has lawyers and experts stumped.

Eugene Meehan

The Supreme Court’s latest special edition of its Bulletin of Proceedings highlights a trend of disproportionate application rates at least to 2004.

The bulletin for 2008 shows the Supreme Court received 143 applications for leave to appeal judgments of the Court of Appeal of Quebec, compared to 141 applications from Ontario.

Quebec’s population is currently 7,535,900 while the population of Ontario is at 12,390,600, according to the latest data from Statistics Canada.

Lawyers who keep a close eye on Supreme Court proceedings and trends agree the number of applications from Quebec would be 64-per-cent less than what it was last year compared to Ontario, if it were based roughly on population.

But the reason for the disproportionate number of applications remains, to this point, a mystery.

“I would have thought it would go the other way, there would be less from Quebec,” Brian Crane, a constitutional and Supreme Court expert at Gowling Lafleur Henderson LLP, tells Law Times.

Crane based his assessment on a combination of factors, primarily based on an expectation that Quebec litigants would hold a belief that the Quebec Court of Appeal would be best suited to rule on Civil Code cases.

“I think that Quebecers might very well have good confidence in their court and consider that to go to Ottawa on a Civil Code matter, there’s only three judges there from the Civil Code tradition,” he says. “The oddity is, why there are fewer from Ontario?”

Crane speculated that the lower per capita rate of applications for leave from Ontario could be explained by the requirement for leave to appeal administrative law decisions from Ontario’s Divisional Court to the province’s Court of Appeal.

“There is another filter, as it were,” he says. “That would reduce the number of cases going to the Court of Appeal and hence the number of cases going to the Supreme Court.”

The trend is especially a puzzle considering a political sentiment in a large segment of Quebec’s intelligentsia and nationalist circles that has long opposed the notion that the SCC is final arbiter in legal battles that take place within Quebec.

The rates of leave applications from the two provinces has see-sawed back and forth for the past six years, but even when Ontario led, the numbers were not in proportion to the large gap in population.

In 2007, there were 163 applications for leave to appeal from Ontario, compared to 144 from Quebec. Quebec was ahead in 2006 with 135 applications to Ontario’s 130. In 2005, the figures were 158 from Ontario and 154 from Quebec. Quebec was only slightly behind in 2004, at 133 leave applications to 150 from Ontario.

Eugene Meehan, the noted Supreme Court expert and partner at Lang Michener LLP in Ottawa and a former executive legal officer at the court, was also perplexed, saying more information about the breakdown of case types from the two provinces is required.

The Supreme Court bulletins provide a breakdown in total applications for leave, as well as a breakdown in the type of appeals heard, but that information on the basis of provincial origin was not at hand in the court office.

Overall, 27 per cent of the applications for leave to appeal at the Supreme Court were criminal and 73 per cent were civil. Within that breakdown, seven per cent of the cases were civil Charter appeals and an equal seven per cent were criminal Charter appeals.

For 2008, the statistics for appeals heard were also disproportionate on a per capita basis, but with British Columbia standing out.

The Supreme Court heard 20 appeals from B.C., but only 17 from Quebec and even fewer, 11, from Ontario.

Meehan noted that other data in the 2008 bulletin showed that, with minor fluctuations, the court’s performance in time taken for decisions on applications as well as judgments following hearings has remained roughly the same.

In fact, considering the absence of a full court for nearly six months following the retirement of justice Michel Bastarache in June, the court’s performance improved.

The average time between hearing and judgment was 4.8 months last year, compared to 6.6 months in 2007. That was despite the fact that the court heard 82 appeals in 2008 compared to 53 in 2007.

“The bottom line is that the ship is going steady as she goes,” Meehan tells Law Times.

“The captain and crew are working hard and steering the ship good and true in sometimes busy waters.”

A total of 509 applications for leave were submitted to the court, with 56 decisions on applications pending by January.

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