Chief Justice Richard Wagner has made one of his objectives steering the Supreme Court of Canada (“the SCC” or “the Court”) in a way that makes it more accessible to Canadians for whom in the normal course the Court may seem inaccessible and out of touch.
For example, he began the practice of “plain language” summaries of SCC decisions: see Cases in Brief, described as “short summaries of the Court’s written decisions drafted in plain language”. He has taken the Court on field trips to cities other than Ottawa, so far to Winnipeg and Quebec City. As the Court’s website explains, “During each visit, the Court sat for 2 hearings, met with high school and university students, held a free public event and spoke with local members of the bar and judiciary.”
These and other efforts by the Court over many years, including before the current chief justice, to make its processes more transparent are to be commended. Some of these initiatives are directed at the general public, while others are meant to establish connections between the Court and the legal community, including law students (I can speak personally about the popularity of visits by SCC judges to law schools).
The Chief Justice’s most recent idea is somewhat different, however: he is musing about having the Court mediate cases when the parties have not been successful in obtaining leave to appeal to the SCC (see Christin Schmitz, Law 360 Canada, “C.J. Wagner says top court ‘exploring’ provision of mediation in cases where leave to appeal denied” (“Schmitz”) and Christopher Nardi, National Post, “Canada’s top court is considering mediation. Some are wondering why?” (“Nardi”): both articles quote several legal experts on the desirability of mediation at this level to which I refer below).
Chief Justice Wagner noted that the Court grants leave in very few applications for leave to appeal among the hundreds before the SCC. Does he feel remorseful or sad because so few parties have the benefit of the SCC’s determination of their dispute? Would mediation be a kind of consolation prize? Surely not, because that would be ridiculous.
Indeed not. As the Chief Justice explained, the seed for his thinking came from a discussion with the chief justice of Brazil’s Federal Supreme Court, which has established a Mediation and Conciliation Center (Schmitz) to attempt conciliation of cases before the Court. Quoting from the Canadian Bar Association’s Verdicts and Voices podcast Jan. 30, 2025, Schmitz reports that Chief Justice Wagner stated, ”The [Canadian] Supreme Court is always looking ‘at new ways to facilitate access to justice, to provide more remedies if need be,’ and tries ‘to innovate to facilitate access to justice’” and he has thrown out the idea of mediation post-determination of the granting of leave process for parties who were not successful.
The issue here is not mediation itself, which is available privately and through courts and tribunals; for example, Ontario has a mandatory mediation program in civil cases that operates in Toronto, Ottawa and Windsor. In British Columbia, one party may initiate mandatory mediation with the other party or parties. Generally, mediation occurs before parties go to court or before a tribunal hearing. Sometimes parties decide to mediate at a later stage, but this would not make sense in the context of the SCC.
Here the Chief Justice is suggesting offering mediation after the SCC has refused leave to appeal. As others have pointed out, why would the party that had been successful in the court below agree to mediation? Accordingly, others have suggested that mediation before the Court determined the application for leave to appeal would make more sense, although of course that would theoretically involve so many cases it would be untenable. And if the Court offered mediation to some cases on the list, that would be a big giveaway that they were not destined to be granted leave. Yet others wonder, if the Court is searching around for something to do, why it does not hear more appeals. (See comments in Schmitz and Nardi on these and other points.)
The Chief Justice’s “announcement” (musing? pondering?) was at a very high level and several individuals quoted in Schmitz and Nardi observed that it was difficult to say much about it without more detail. One imagines that the options could range from Supreme Court justices sitting down with the parties to a separate institution devoted to mediation. Who would pay for it? Would retired SCC judges mediate (this is what happened at least with the first mediation at the Brazil Center)?
There are many questions that might be asked about this proposal, but the one that seems to me to be most significant is whether mediation through the Supreme Court of Canada is consistent with the Court’s institutional role or a good use of the Court’s time. I agree with those who think it is not: there is no need and it is not desirable to confuse a mediation role and Court’s role as the paramount arbiter of the law on a national scale.
The Court’s decisions relate to disputes between particular parties (in civil cases) and the state and individuals/organizations (in criminal and other cases), as well as constitutional cases, but the significance of the Court’s decisions by definition goes beyond those specific disputes. We can compare the parts lower courts and tribunals play in the justice system. The lowest courts and tribunals are focused on determining the disputes of the parties before them; mediation is an integral part of that process to encourage the parties to resolve their own disputes. Courts of appeal also determine individual disputes, but their decisions often have a broader influence on the development of the law, mostly in relation to the court’s own province (although appellate courts do refer to each other’s judgements).
However, as the final court of appeal, the SCC’s purpose is to resolves disputes about the law (for example, where appellate courts have disagreed, there is a novel issue at play or there have been societal developments that warrant a rethinking of the law). The fundamental principle underlying the decision to grant leave is that “the Supreme Court is of the opinion that any question involved [in a judgement by a prior court] is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it ….” (Supreme Court Act, s.40(1)).
Even if a dispute meets that requirement, the Court will not necessarily grant leave, but the general sense is that cases granted leave have some kind of national significance. In short, the Court is not really intended to solve private disputes, but to use private disputes to clarify or advance the law so that it benefits the country as a whole (from time to time, the impact might be more limited because of some aspect of the case, such as the legislation involved).
It is true that cases in which the SCC did not grant leave might nevertheless involve a matter of significant public importance, since the Court has limited capacity to hear appeals. Mediating these cases, however, will not have the same impact as a decision of the Court. Mediation does not result in a decision, it results in a settlement. It helps the parties, but it does not have national value. It does not merit the Court’s valuable time and expertise. No doubt other future initiatives will have the potential of making the Court’s work more transparent and will enhance the Court’s reputation. But as things stand, this one, not so much.