Chief Justice gets down to business

We recently sat down with Chief Justice Beverley McLachlin in Ottawa to discuss the court's role in business law in Canada. The following contains abridged answers from the interview. A longer version will appear in the February issue of Lexpert Magazine.

Why are there more business-related decisions coming before the Supreme Court of Canada in recent years than in the past?

In recent years, the Chief Justice said, "there's been a vibrant economy and it's an increasingly complex one because of globalization." Legal questions arise in corporate disputes and commercial cases that in turn raise "questions of national importance. It's important for Canada that there be uniformity" in the answers to those questions, which is within the role of the SCC, she said.

Are there notable implications of SCC decisions for the Canadian business community?

Is the Canadian business community well served by the Canadian judiciary? Do judges "get" business?

The business community is well served, in the opinion of the Chief Justice. All of the justices understand this as part of their mandate: That to be most effective, the rules have to be clear, capable of application in the real world, she said.

In the Strother decision, you express an understanding of today's business complexities for lawyers; for example, they face ever more intense specialization. How does an SCC justice acquire an up-to-date appreciation for practice concerns?

"The first part of the answer to that question is obvious: By studying the file. We educate ourselves from the submissions of counsel and the record. Also, the justices are engaged citizens, not isolated people in ivory towers. We do try to understand the world in which we're judging." Justices apply a perspective of "humility and deference" to their work, she said, and that is a strong basis for understanding the business issues, or any other issues, facing the court.

Have intellectual-property-law-based cases taken a more significant business dimension than in previous eras or does it just seem that way? Has IP always had a strong business streak in SCC jurisprudence?

"Intellectual property cases have always had a business aspect to them." What has evolved is, again, the globalization of the businesses involved, she said. "Before, everybody knew what their property rights were." Now, as in Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée and others, the global reach of property rights and questions about those rights need to be addressed. So too, the spread of ideas, the complexity of export-import relations, how patents work in Canada and in other countries, all come to bear on the court's consideration of intellectual property cases. All of this is further complicated, of course, by technological advances.

You've raised a concern about the cost of legal fees as a challenge for the legal community in the public interest. Do you have a variation of that concern as it applies to the business community?

"The business community is composed of citizens. If we care about law, care about justice, then we need to be sure there is access to justice at all levels. In the business context, that means proportionate justice; fees, cost and delays proportionate to what is at stake."

What part, if any, does the court system need to do better to ensure justice in the business context?

The courts need to improve on their part in delivering better access to justice, she said. "No one sector can resolve it by itself; it takes the co-operation of the lawyers, the government and the courts." The courts need to be "very conscious that they are there to serve the public, user-friendly," conducive to lawyers doing their job effectively, and electronically improving in step with available, helpful technology. Trial courts and courts of appeal are responding, for example, with changes to rules to improve "prompt fair resolution of disputes." The Canadian Judicial Council is working with other organizations nationally to share access to justice initiatives.

Justice in a business context is often delivered through arbitration or other alternative dispute resolution [ADR] processes. Does this raise a concern for you with respect to our jurisprudence?

"ADR is a vital, indispensable part of the justice system. Business people like it because it can be a cheap, effective, fast way to resolve their issues and get on with their lives." However, we continue to need a strong court system, because "questions of principle do arise. The system needs to provide guidance." Therein lies one of the leading values of the court system, its provision of jurisprudence.

Can you comment on the degree and frequency to which the SCC takes into account foreign legal sources? Can you parse that down on international lines?

As we know, she said, Canada originally took its law primarily from England. With the adoption of the Charter, the courts began to look more broadly. This may be from the European Court of Human Rights, Australia, New Zealand, the Francophonie, and of course, the U.S. and U.K.

The courts do not "slavishly" apply foreign decisions, but look to them as "a source of ideas" when considering similar problems.

What part do exchanges between Canadian judges and judges from other jurisdictions play in educating SCC justices?

They're very educative, the Chief Justice said. They provide judges in various jurisdictions with forums to say, " 'this is happening, you should know about it,' " because it likely is or will come your way, too.

Do you see the media fulfilling a role in the legal system?

"The media is critical. It communicates the law to the public." What most Canadians know of the law, they know from television and newspapers, she said. The court tries to be as helpful as it can in making sure that communication is accurate. So it provides an executive legal officer, a liaison person for the media, as well as lockups for the media on important decisions.

"The Court does not worry about the media when we're deciding which way the case should go. We do, however, try to write our decisions in a way that's accessible - to say what we are saying as clearly as we can. We're not looking for approval from the media, but we are interested in what they have to say about our decisions."