ADR Institute of Canada Panel – Fireside Chat with Justice Côté
The ADR Institute of Canada concluded its CanArbWeek event with a fireside Q&A chat featuring Hon. SuzanneCôté. The interview was conducted by Lauren Tomasich (Oslers). Tomasich began by reminiscing about her friendship with Justice Côté when they practiced together at Osler Hoskin & Harcourt. Côté was renowned for her mentorship of young lawyers. and the team at Osler was proud but also sad when they heard about Justice Côté’s appointment to the Supreme Court of Canada. Justice Côté seemed to be comfortable and was more candid than many sitting judges would be, although of course she was careful not to comment on any pending cases.
Policy considerations for deference to arbitration
Tomasich began the fireside chat by explaining that the Supreme Court of Canada (SCC) maintains a robust tradition of deference to arbitrators and to the freedom of contract principle. She described the competence-competence principle (whereby the Court normally defers to arbitrators to make the first ruling on their jurisdiction). Then, she summarized the relevant precedential history, including Dell Computer Corp. v Union des consommateurs, Seidel v TELUS Communications Inc., TELUS Communications Inc. v Wellman, and Uber Technologies Inc. v Heller. She went on to ask Justice Côté what she believes motivates this policy of deference to arbitrators.
Justice Côté explained that in the 1990s, the policy in favour of arbitration was cultivated with a view towards access to justice. That priority is still in effect at the Court, although the focus of access to justice concerns has shifted. When Dell was decided, the context was that legislation was promoting arbitration as a dispute resolution method that was more efficient and less expensive than legislation—something that was vital to shoring up the already-overburdened justice system. Next, Justice Côté discussed precedential history. She explained that in Dell, the Court showed deference because it came to the conclusion that the Quebec Civil Code did not prevent the arbitration clauses, so the Court defaulted to respecting freedom of contract. In Seidel, the legislation in British Columbia led to a different result for some of the causes of action in the lawsuit. The plaintiffs were all consumers with mixed claims (some common law and some statutory). The Court allowed the statutory (public interest) claims to continue in court but enforced the arbitration agreements for the common law issues. Access to justice was at the heart of the issue in this case. She explained further that it has always been clear that the Court will enforce arbitration agreements absent statutory language to the contrary.
Justice Côté added that she was pleased to be in the majority in the Wellman decision. While the majority did depart from Seidel in some aspects of their decision, they did not depart from Seidel in their clear message that the Court must consider legislative language. If the legislation constrains arbitration agreements too little or too much, it is the job of the legislature, not the Court, to reform it. In Uber, the the majority, concurring, and dissenting opinions, although differing in both reasoning and outcome, were all motivated by different readings of what “access to justice” requires.
Effective intervention at the Supreme Court
Tomasich continued to build on the topic of policy considerations in arbitration cases. She asked Justice Côté about the role of arbitral institutions and industry groups that have often intervened in cases before the SCC. She explained that, especially in landmark cases such as Uber, many arbitral organizations often hope to intervene. She asked Justice Côté to give some advice: what should interveners to do have their applications accepted, and to make the most of their opportunity to persuade the Court?
Justice Côté noted that the topic of interventions is becoming increasingly important at the SCC. In Uber there were over twenty interveners. She also stressed that interveners cannot discuss the facts, but can discuss what framework should be applied, or how the law should be changed. The Justices receive many motions for intervention, so it is very important to be concise, and to note what the consequences are for the group you are representing. If granted leave to intervene, the SCC will allow a ten-page factum for your argument and will grant an automatic five minutes for oral submissions. Not all interveners need to give oral submissions; however, if they do make oral submissions, it is crucial not to simply repeat the factum. A particularly effective strategy for oral submissions would be to answer any questions the Court posed to the parties, if you believe the answer from counsel was in some way ineffective. It can also be a useful tactic to invite questions at the end of your five minutes, to extend your time before the Court.
Arbitral legislation reform in Ontario
Tomasich explained that the Toronto Commercial Arbitration Society’s Arbitration Act Reform Committee has recommended consolidating the domestic and international commercial arbitration statutes in Ontario. Under their recommendation, one act will apply to all commercial disputes, and one to all non-commercial disputes. For domestic arbitrations, the parties would have to opt in to a right of appeal, which would go directly to the Court of Appeal. Tomasich asked Justice Côté to comment on the commercial versus not commercial dispute dynamic, the way it impacts what statute applies, and how she might see this type of legislative reform impacting arbitration jurisprudence in the future.
Justice Côté began by noting that this reform will make Ontario a more arbitration-friendly jurisdiction, and therefore is a positive development. If there is legislative consolidation, it will clearly save time and resources on appeal because the courts will not need to spend time and energy determining whether the domestic or international act applies. This would also help with certainty and predictability, since dispute resolution clause is informed by all these different statutes, thereby limiting judicial interference and appeal rights. She acknowledged that while the proposed reform would not change anything for non-commercial arbitrations, it would bring Ontario into alignment with other jurisdictions, and will align Ontario law with international standards.
Written and oral advocacy before the SCC
Tomasich took this opportunity to ask a more general question about written and oral advocacy. She questioned Justice Côté about how her perspective has changed on these matters since shifting from her role as an advocate to her role as a judge sitting on the SCC, and what advice she has for lawyers advocating before the Court.
Justice Côté began by making light of her frustration as an advocate when she would be interrupted with questions during opening arguments, by saying she would not be able to litigate anymore since she would no longer tolerate such interruptions politely. More seriously, she stressed the importance of being concise, since counsel representing parties end up having much less than sixty minutes before the SCC, after taking into account questions and interruptions. While forty-page factums are allowed, she recommended not insisting on filing forty pages. Twenty to twenty-five pages is perfect, as judges love when there is minimal repetition. She joked that if she has to go to the fridge three times while reading your factum, it is too long!
With respect to oral advocacy, Justice Côté mentioned that it is good to receive many questions. She assured the audience that judges are always prepared and will often have already formed an opinion of the case. They will likely want to convince their colleagues of their own view through asking specific questions. She also advised lawyers to answer questions as soon as they are asked—don’t put them off until later, and also don’t complain to the Justice posing the question that it pulls you off your planned topic order! Another important aspect is to always listen carefully to questions posed to the opposition. Lastly, she noted that submitting a two-page outline of the structure of your argument is also extremely helpful, as judges will be able to time their questions accordingly, for maximum persuasive impact and also minimum interruption to counsel’s argument structure.
Bringing a commercial practice perspective to the SCC
Finally, Tomasich spoke about how Justice Côté had come straight from commercial practice to the SCC. She asked how Justice Côté believes her commercial experience and perspective has informed her time on the SCC.
Justice Côté responded by saying she believes she brings a different perspective as the only one out of nine Supreme Court Judges who came directly from commercial practice, and one of a minority who has a business law background. She mentioned she always brings practical considerations to bear, and values efficiency in the decision-making process. She noted that we cannot interpret the law without observing the results on the ground. The outcome in Uber v Heller may be an example of a party that forgot this lesson. If it had agreed to front the costs of its arbitration against Heller, Uber would likely never have ended up having its arbitration agreement invalidated and would not now be facing a class action by Uber Eats drivers. Tomasich agreed, mentioning that in practice she regularly advises clients contracting with less sophisticated entities that they should agree to pay arbitration costs of the counterparty up-front.
Tomasich thanked Justice Côté for coming and answering her questions, and Justice Côté thanked the audience members for their attention.
* JD Student, Queen’s University Faculty of Law; Managing Editor of Blogs, Canadian Journal of Commercial Arbitration.