Canada’s top court is considering mediation. Some are wondering: why?

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OTTAWA — The Supreme Court of Canada is considering offering mediation services for cases it does not accept to hear, raising eyebrows and questions among court watchers and lawyers.

Supreme Court (SCC) Chief Justice Richard Wagner made the surprising revelation on a podcast hosted by the Canadian Bar Association as part of a discussion on broadening access to justice.

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“Recently, I asked my staff to explore the possibility of maybe looking at mediation in circumstances that could allow it,” Wagner said, adding that it’s still “very early” in the exploratory process.

In the interview, Wagner recognized that the Court only takes a “very small portion” of the 400 to 600 applications for leave to appeal that it receives yearly. Thus, he mused that the court could offer mediation to parties in cases it does not accept to hear.

“There might be other cases which we don’t take for hearing on the merit that might be dealt with by mediation. So, if we could have the staff and the budget and the way to deal with those cases, it might be one thing to consider,” he told podcast host Alison Crawford.

One sector that could benefit from SCC mediation is family law, Wagner suggested, adding that the Court of Appeal of Quebec was a trailblazer in offering mediation as part of alternative dispute resolution (ADR) in both criminal and civil cases.

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SCC executive legal officer Stéphanie Bachand declined to respond to questions about if mediation would only be offered in cases the court declined to hear, if SCC judges would be involved in the new service and which matters the court would prioritize for mediation.

“At this time, we have no additional comments to share. The idea is still in an exploratory phase,” Bachand said by email.

Mediation, or a guided negotiation between parties led by either a mediator or a judge, is increasingly on offer in provincial trial and appeal courts. But this is the first time it’s been evoked as a potential service from the Supreme Court.

Offering mediation to parties after the top court declines to hear their case — which is effectively the end of the legal road for almost all litigation — came as a surprise to the near dozen lawyers, judges and court watchers contacted by National Post.

All of them were supportive of efforts to expand mediation across the legal system to help parties avoid costly and time-consuming litigation when possible. But most questioned if mediation squared with the SCC’s role as a top court mandated to settle legal questions of national or broad interest.

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Paul-Erik Veel, a partner at Lenczner Slaght who does frequent data analysis of the SCC, also argued that mediation after a leave has been decided is of questionable value.

“The Supreme Court is there as an institution to resolve broad questions of national importance, not to help solve individual disputes outside of the formal process,” he said in an email.

“While mediation may be helpful at many stages, it strikes me as less helpful in cases where leave has been dismissed and a case has hit the end of the road. I’m always interested in the Chief Justice’s ideas for the court, but I have some difficulty seeing as how this squares with the role of the institution generally.”

Allan Stitt, who heads the Canadian Mediation Association (CMA), applauded the chief justice for thinking about mediation but said it would be much more appealing if offered to litigants before their leave to appeal at the SCC is decided.

“I’m not sure I completely understood why the winning party would want to go to a facilitated negotiation like a mediation and talk about what they would give up from what they’re entitled to in law that can’t be appealed,” said Stitt, also the CEO of ADR Chambers.

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Marie-Claude Belleau, a mediator and Université Laval law professor, was thrilled that the chief justice was considering offering mediation as a means of broadening access to justice to cases that otherwise would not be heard by the top court.

She says it signals a change in the role Wagner sees for Canada’s apex court.

“What it says, in this consideration of mediation, is that the way to decide the law is not necessarily through an opinion of the court,” Belleau said. “It seems to be a shift in what Chief Justice Wagner considers the role of the court.”

Wagner said the idea came to him after hearing from Brazil’s top judge during a G20 meeting last year. The Brazilian Federal Supreme Court created the Mediation and Conciliation Center in 2020 to help find “consensual solutions” in certain cases still before the court.

“It’s a work in progress, and every year with the good staff that we have at the Supreme Court… we try to find the best way to improve access to justice,” Wagner said.

But the overwhelming sentiment from the lawyers and court watchers who spoke to National Post on and off the record is that the best way for the SCC to improve is to hear more cases.

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Last year, the SCC accepted to hear 34 of the 529 cases that applied for leave. That is below the historical average of 60 to 100 cases per year but roughly par for the course under Wagner’s tenure as chief justice, according to an analysis by law firm Lenczner Slaght.

It’s also the third lowest total amount of cases the SCC has agreed to hear — both in number and in proportion to the requests for leave — since the firm began compiling the statistics in 2018, the first full year with Wagner as chief justice.

“There’s a lot of hope that the court would begin to perhaps hear more cases than it has been over the last few years and grant a higher rate of leave,” said Sujit Choudhry, a constitutional lawyer and legal scholar who regularly pleads in the SCC.

“If the concern that the court has is that might overwhelm the court, a mediation mechanism might help” if it is offered to cases before their request for leave is decided, he added.

Stitt, the head of the CMA, discouraged the SCC from potentially involving any sitting judges in an eventual mediation service.

“The job of the judge is to hear cases,” said Stitt. “Judges being pulled away to do other things reduces their time and availability to hear cases, and it’s so important that the justices of the Supreme Court of Canada hear the important cases that are the law of the land.”

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