Marshall Rothstein casts an eye to Supreme Court docket, including standard of review

When Marshall Rothstein was being considered as a puisne judge on the Supreme Court of Canada in the winter of 2006, he was the first candidate to go through a parliamentary hearing process and answer questions from a special parliamentary committee prior to his appointment.

Marshall Rothstein casts an eye to Supreme Court docket, including standard of review
'My own preference would be that the [Supreme] Court will say questions of statutory interpretation should be decided on a correctness standard, full stop,' in standard of review cases, says former Supreme Court justice Marshall Rothstein, now of Osler Hoskin & Harcourt LLP


When Marshall Rothstein was being considered as a puisne judge on the Supreme Court of Canada in the winter of 2006, he was the first candidate to go through a parliamentary hearing process and answer questions from a special parliamentary committee prior to his appointment.

“The Harper government had just been elected and said they wanted public hearings for Supreme Court justices,” Rothstein told Legal Feeds in a wide-ranging interview. “I was the first one that had to do that.”

Rothstein sat on the Supreme Court bench from 2006 to 2015 and is now a tax litigation partner in Osler Hoskin & Harcourt LLP’s Vancouver offices.

After a selection process that includes due diligence, the individual who is nominated by the prime minister to be a Supreme Court justice will now appear in front of a special parliamentary committee that conducts an interview, he says, adding that he believes the vetting process in Canada to be rigorous.

After Rothstein was appointed to the high court, two or three other individuals went through the parliamentary committee interviews of the prime minister’s selected candidate, he says, followed by a period when the prime minister returned to simply making appointments without benefit of committee hearings.

However, he says, the last two appointments to the Supreme Court (i.e., of Justices Malcolm Rowe and Sheilah Martin) have gone through a parliamentary committee. Since April 2005, an advisory committee has been formed each time a Supreme Court vacancy arises; the committee receives a list of seven candidate names from the minister of Justice, which it winnows down to three names and submits to the prime minister for selection.

And in the wake of Brett Kavanaugh’s nomination hearings for appointment to the Supreme Court of the United States, Rothstein notes that “the big difference between Canada and the United States is the [political] polarization.” Since he was appointed to the Supreme Court of Canada in 2006, he says, “there’s never been a political aspect to the appointment. The opposition has asked questions . . . but there’s never any overt political posturing.”

The Supreme Court’s fall docket

The Supreme Court has a typical caseload of approximately 30 appeals to hear this fall. Among the last hearings of the season, on Dec. 12, is the appeal of Radio-Canada reporter Marie-Maude Denis, who the Quebec Court of Appeal agreed must reveal her sources for stories that helped bring to light Quebec’s corruption scandal and led to charges of fraud against the province’s former deputy premier, Marc-Yvan Côté.

The question of confidential sources to journalists is significant in the age of the Internet, Rothstein notes, “and I would suspect the court will see a number of cases regarding the way in which journalists are able to retain confidentiality of their sources.”

Other issues that he expects to see come up before the courts are privacy, including those related to social media, transmission of information via cellphones and the use of global positioning systems to track individuals’ movements. Rothstein also predicts more appeals to the Supreme Court arising from its 2016 decision in R. v. Jordan, which set ceilings on the time an accused has to wait before going to trial. He also sees more Aboriginal cases coming to the high court as major national projects such as pipelines affect Aboriginal interests.

Also in December, the Supreme Court will hear a trilogy of cases on standard of review. Its leading decision on the matter until now was Dunsmuir v. New Brunswick in 2008, which determined that “correctness” and “reasonableness” should be the only two standards of judicial review with respect to decision-making. Rothstein was then part of a unanimous court in that decision.

In dismissing the appeal of New Brunswick civil servant David Dunsmuir, who had been fired from his job in 2004, the Supreme Court identified factors that should lead to deference to a decision-maker (e.g., a tribunal or first trier of fact) and the application of a reasonableness test. Those factors were a i) “privative clause” or statutory direction from Parliament or a legislature indicating the need for deference; ii) a discrete and special administrative regime in which the decision-maker has special expertise, such as in labour relations; and, iii) the nature of the question of law, whereby a correctness standard must always apply in cases where a question of law is of "central importance to the legal system . . . and outside the . . . specialized area of expertise" of the administrative decision-maker, whereas “a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.”

In 2009, the Supreme Court decided Canada (Citizenship and Immigration) v. Khosa, which was its first significant guidance post-Dunsmuir regarding the implementation of the standard of review analysis. Although Rothstein concurred in the result, which allowed the appeal, he found that the standard of review was statutorily directed by the Federal Courts Act and that the statutory direction displaced any role that Dunsmuir may have otherwise played in determining the standard of review.

“I think that our approach to standard of review has not been right for many years,” Rothstein told Legal Feeds. “What I believe is that where a statute provides for a right of appeal of judicial review, then the standard of review on legal questions should be correctness. In all cases, where the questions are factual or discretionary, then of course the court should give deference to the tribunal making the decision. 

“Where a statute contains a privative clause, then the court should give deference to the tribunal, because the legislature, through the private clause, has told the court to be restrained in reviewing legal questions.” At the same time, the courts are there to make sure that tribunals don’t stray from their mandate, he says. “So, even where there’s a privative clause, courts need to have some oversight.

“There are many tribunals whose members aren’t even lawyers,” he adds. “To suggest that there should be deference to tribunals on legal standards . . . strikes a wrong note.”

Rothstein was called to the Manitoba bar in 1966 and was a partner in the Winnipeg firm of Aikins MacAulay & Thorvaldson (now MLT Aikins LLP), working largely in the fields of transportation and competition law. He practised “in the halcyon days” of the 1970s and '80s, he quips, “before we got into standard of review.

“We got into a decision on the merits. That was a lot simpler and a lot faster."


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