Court 'functioning at its best' on BCE

I especially like the quotations from leading, nay top, lawyers below.

The Globe and Mail
Wed 20 Aug 2008
Page: B1
Section: Report On Business: Canadian
Byline: Kirk Makin
There was no mistaking Chief Justice Beverley McLachlin's pride as she boasted about the high point of the Supreme Court of Canada's work year - a quick resolution to the spring appeal in the proposed $35-billion takeover of BCE Inc.

It was the only case she referred to by name this weekend in her annual summary to the Canadian Bar Association, where she held the appeal up as an "extreme example" of just how timely and relevant her court can be when it is "functioning at its best.

"While not all cases require this level of expediency, the BCE appeal shows that our court system can respond to the needs of litigants for efficient resolution of disputes," she said.

Timely and relevant are words the business community has rarely associated with the Supreme Court.

To a court that is highly sensitive to its public image, the case was a heaven-sent opportunity to shine.

The court's image on Bay Street has been hampered by the fact that it can only hear a very limited number of cases each year - typically ranging from 50 to 90 appeals - and its caseload is frequently top-heavy with constitutional and criminal cases.

Not surprisingly, lawyers in the business community complain that their specialties get short shrift.

The Supreme Court ruling on June 20 overturned a Quebec Court of Appeal ruling in May that had sent the planned acquisition of the telecommunications giant into legal purgatory.
It quashed a rebellion by BCE bondholders that argued the board of BCE failed to consider their interests when they approved a debt-heavy takeover that eroded bond values. Legal experts expect the ruling will shed some badly needed clarity on the duties of public company directors.
The parties at the time faced a June 30 closing deadline, and it took only three weeks for the case to get before the country's highest court.

"The average appeal in the Supreme Court takes approximately 18 months from the filing of the leave application to the rendering of the decision on appeal. In the case of the BCE appeal, this time was compressed to one month," the Chief Justice said.

James Morton, a Toronto litigator and past president of the Ontario Bar Association, says the Bay Street law community took notice.
"I have never before seen the Supreme Court act with anything approaching the speed of the BCE appeal.

"There is no question that all of the superior courts and courts of appeal are well aware that their reputation in the business world is not good in terms of speed," Mr. Morton added

"There is a reasonable basis for that concern - because litigation does take years."

Mr. Morton noted that the inexorably slow pace of justice has spawned steady growth in recent years of arbitration and private courts, where disputes can be resolved in weeks or months, not years.

Mahmud Jamal, an Osler Hoskin & Harcourt lawyer who appears regularly in the Supreme Court, said there has always been an element of myth to the grousing about the Supreme Court's pace. In part, he said, it results from a lack of familiarity with the intricacies of the court.
"The court has largely been on the periphery of Bay Street's radar, but became its focus overnight with the BCE case," Mr. Jamal said. He said the court actually selects cases based on public importance, and whichever cases meet that standard are likely to be heard.

"They don't search out issues on their own," he said.

"In that context, claims of unresponsiveness tend to be overblown.
"However, while the complaint was overblown, the court's docket has shifted to include more business disputes in areas such as corporate-commercial law, pensions, tax, class actions and intellectual property," Mr. Jamal noted.

Chief Justice McLachlin's speech to the CBA's annual convention was notable for one other aspect bearing directly on business.

She expressed concerns about the background of whoever is ultimately appointed to replace Michel Bastarache, who retired in June, on the Supreme Court.

Mr. Bastarache was a well-rounded judge with considerable experience in corporate and commercial law, Chief Justice McLachlin said.

She said this "added to our ability to deal not only with constitutional and criminal law issues, but to deal with some important commercial and corporate issues. My hope is that we retain our balance."