By S. T. Goudge, J.A. Assisted by Katina Hunter*
The title chosen for this talk by the organizers of today’s program is to say the least, daunting. My five choices represent just about as pure and unguided an exercise of judicial discretion as one could imagine. The only saving grace from my point of view is that unlike my day job, there does not appear to be a judge from the Supreme Court of Canada here today to tell me that I was wrong.
Of the five cases I have chosen, four come from Ottawa and one from the Ontario Court of Appeal. My sense of loyalty and the advocate’s rule that you start with your best, mean that I must begin with the decision from our Court.
Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General) (O.C.A. April 27, 1999), (1999) 172 D.L.R. (4th)193
In 1997 the Government of Ontario brought about fundamental changes in the governance and funding of the provincial education system by passing the Education Quality Improvement Act. It had as a primary objective the centralizing of the governance and funding of education throughout the Province. It removes the historic power of local school boards to raise money for their schools through local property tax levies. The Provincial government was left with exclusive control over funding the education system, although it was to do so by means of property taxes using provincially set tax rates.
While local autonomy was removed, the new funding model provided that public and separate school boards, each of which previously had the right to levy local property taxes were to have equal access to revenues on a per pupil basis. The Act also placed certain limits on the ability of school boards to make spending decisions such as a prohibition on shifting funds designed for a “classroom spending” to “non-classroom spending”.
Thus the impact of the legislation in removing local autonomy to raise funds for local education and in constraining local autonomy in spending decisions for local schools became the subject of a significant constitutional challenge to the legislation. One interesting footnote to the challenge is that while a major challenger of the legislation was the organization representing teachers in the Catholic school system, the Catholic School Trustees were on the other side of the debate.
At first instance, Cumming J. struck down the legislation because of its removal of what in his view was the constitutionally guaranteed right of separate school boards to autonomously raise funds through local property taxes. Given that this legislation was the cornerstone of the Provincial government’s policy in restructuring education in the province,the appeal took on great significance.
It was heard by a five-judge Court presided over by the Chief Justice. He was joined by Justices Brooke, Abella, Borins and me. With that disclosure from hereon you can discount my objectivity in analyzing this decision.
The debate centers on s.93(1) of the Constitution Act, 1867. That section says “in and for each Province the Legislature may exclusively make laws in relation to education subject and according to the following provisions (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the Province at the union.”
The Court was charged with the task of determining the nature of the arrangement provided for separate school education at the time of Confederation. What was the essence of the original deal?
The choice as presented can be presented as competing visions of how the world of 1867 should be described.
The Catholic teachers, seeking to defend the decision at first instance, described in detail the way in which education was delivered at the time of Confederation both in Upper Canada and in Lower Canada. In Upper Canada separate school education was the minority. The reverse, of course, was true in Lower Canada.
A fundamental part of the great compromise that created our country consisted of the way in which the founding fathers (aa politically incorrect as that phrase is today) sought to protect the minority rights in each of the two major components of the new country of Canada.
The Catholic teachers emphasized that at the time of Confederation local school authorities did indeed as a matter off act exercise the right of local taxation to provide funds for their schools. The concern of the local separate school authorities in 1867 was focussed on the political reality that the higher provincial authority in Upper Canada could not be counted on to share the denominational concerns which they reflected and which they wanted to continue to infuse into the separate education system. Much the mirror image of this concern was presented in Lower Canada.
The historical compromise is encoded in the brief and cryptic language of s.93(1). The Court’s task was to move that compromise across the years that have passed since Confederation to determine what in today’s context that compromise must mean.
In essence, the Court’s view was that the snapshot frozen in time as of 1867 could not be the sole determinant of the outcome of this debate. Rather, the court searched for the underlying essence of the compromise and found it to be a guarantee that there must be preserved a viable separate school system fairly and reasonably funded. The right preserved by the Constitution was found not to be the detailed mechanism used to fund the separate system in 1867, but rather the right which that funding mechanism ensured, namely, the survival of the separate school system It is that right that the Provincial government is not entitled to impede.
The choice made by the court might be described as that of a dynamic view of s.93(1) as opposed to a static view. The 1997 legislation could thus indeed be accommodated within a dynamic view of the constitutional guarantee provided by s.93(1).
The 1997 legislation provides for funding, albeit sourced from the province, that will give the separate system resources on the same basis as those provided to the public system. That basis was, on the record before the Court of Appeal, enough to ensure the survival of the separate system and hence meet the constitutional guarantee.
Whether this approach to what is undeniably a fundamentally important social and political issue for the Province of Ontario will be sustained will, of course, depend on the nine wise heads who undoubtedly will address this issue when it arrives in Ottawa.
For now let me simply say that this case represents one example of constitutional analysis: an approach designed to move constitutional values through time in a way in which their ultimate worth is preserved while, at the same time, recognizing that those constitutional values must be applied with sufficient flexibility that the change necessitated by the passage of time can be properly accommodated.
As a footnote there is, of course, a question left unanswered namely, if funding is reduced for both the separate system and the public system to the point of arguable inadequacy is that a transgression of the constitutional right guaranteed in 1867 to the separate school system? Given my line of work I can do nothing more than pose the question. Law v. Canada (Minister of Employment & Immigration), (S.C.C. March 25, 1999),  1 S.C.R. 497
Of the various important substantive developments inequality law during the brief history of judicial interpretation of s. 15(1) of the Canadian Charter of Rights and Freedoms(“Charter”), this case, will perhaps prove to be one of the most significant. A unanimous Supreme Court of Canada agreed to the basic principles and summarized the approach to be taken inequality analysis under the Charter. Its stated purpose for doing so was to provide a set of guidelines for courts that are called upon to analyze a Charter-based discrimination claim. The discrimination claim in this particular case involved the distinction drawn on the basis of age with regard to a widow’s disentitlement to a survivor’s pension under the Canada Pension Plan, R.S.C. 1985, c. C-8.
The appellant, a 30-year old woman without dependent children or disability, was denied survivor’s benefits under the CPP because she failed to meet the eligibility criteria, namely an age threshold, or responsibility for dependent children, or a disability. She challenged this scheme and claimed that the CPP discriminated against her on the basis of age contrary to s.15(1) of the Charter. Her first two appeals to the Minister of National Health and Welfare and then to the Pension Plan Review Tribunal were unsuccessful. The appellant next appealed to the Pension Appeals Board.
The Pension Appeals Board concluded that the impugned age distinctions did not violate the appellant’s equality rights. Rutherford J. observed that while age was a factor in determining eligibility for survivor’s benefits, it was not the sole criterion. Rather it was one relevant factor to be considered in determining a relative need for benefits, to be balanced against healthful employment and freedom from the responsibility of dependent children. The Board found that even though the CPP drew a distinction based on age, it did not constitute discrimination within the meaning of s. 15(1) of the Charter. Although it was not necessary to do so, Rutherford J. further concluded that even if an infringement of the appellant’s equality rights that even, it would be justified under s. 1 of the Charter.
The Federal Court of Appeal affirmed the Board’s decision and agreed with the majority opinion as expressed by Rutherford J. that even if the provisions did constitute a s. 15 violation this was a reasonable limit under s. 1 of the Charter. The appeal was dismissed and the appellant appealed to the Supreme Court of Canada.
Iaccobucci J., writing for the Court, concluded that the appellant had failed to establish a violation of s. 15(1) of the Charter, thus rendering it unnecessary to turn to a s. 1 analysis. His examination of the issues includes an analysis of the approach to s. 15(1). He summarizes the decision in Andrews v. Law Society of British Columbia as establishing the three key elements to a discrimination claim under s. 15(1) of the Charter:(1) differential treatment; (2) an enumerated or analogous ground; and (3) discrimination in a substantive sense involving factors such as prejudice, stereo typing and disadvantage. He stressed that equality analysis under the Charter must be purposive and contextual, taking into account the full social,political, and legal context of the claim. He next examined the two-step analysis set out in Egan v. Canada, itself an adaptation of the approach taken in Andrews, and this Court’s subsequent application of this test.
This resulted in the SCC formulating the general approach to s. 15(1) Charter challenges based on the following three broad inquiries: (1) does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively different treatment between the claimant and others on the basis of one or more personal characteristic; (2) is the claimant subject to differential treatment based on one or more enumerated and analogous grounds; and (3) does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereo typical application or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern,respect, and consideration.
Iaccobucci J. stressed that the equality guarantee is a comparative concept which requires a court to establish one or more comparators. He explained that the contextual factors which determine whether legislation has the effect of demeaning a claimant’s dignity must be construed and examined from the perspective of the claimant. He set out a list of factors that should be used and reiterated that the list was not exhaustive. The list included as important contextual factors: a pre-existing disadvantage experienced by the individual or group at issue; the correspondence, or lack thereof, between the ground on which the claim is based and the actual need of the claimant or others; the ameliorative purpose or effects of the impugned law upon a more disadvantaged person; and the nature and scope of the interest affected by the impugned law.
The Court explained that the approach articulated in more disadvantaged was to be used as a guideline, setting out points of reference designed to assist a court in identifying the relevant contextual factors in a particular claim and in evaluating the effect of those factors in light of the purpose of s. 15(1). Ass. 15 jurisprudence evolves it may well be that further elaborations and modifications will emerge. The issue in this case was analyzed pursuant to the approach set out with the result that the appeal was dismissed.
In my limited time on the bench I have found (indeed as Idid in practice) that equality law is just about the most intellectually taxing legal exercise one can engage in. That Canadian courts have had difficulty with s. 15 since 1982 should surprise no one. Over the 17 years of the Charter’s existence all levels of the judiciary have grappled with the challenge. Until this decision, this body of jurisprudence reflected diverse approaches which I think caused significant difficulty in understanding and applying this vitally important constitutional guarantee.
The huge importance of this decision for me is that it provides a strongly unifying approach to those various strands of jurisprudence that have developed over the last decade and a half. It does so in a judgment which is thorough, coherent and, vitally important, unanimous.
We now know how to approach the analysis of equality in Canadian law. The contribution of the Supreme Court of Canada and Justice Iaccobucci in this decision is really significant. The underlying theme on which this coherent approach is founded remains what it has been from the beginning: for Canadians the protection of equality does not mean that all people must be treated identically, in all circumstances. What it does mean is that we as a people fundamentally guarantee to each other a remedy against state induced disadvantage and government action that has the effect of devaluing the humanity of any citizen,where the action is founded on a basis like gender or those others listed in s.15. That this decision allows us to pursue this objective with a coherent methodology is no small addition to the national jurisprudence. Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C. July 9, 1999),  174 D.L.R. (4th) 193
This case involved the appeal of an immigration official’s decision on humanitarian and compassionate grounds and resulted in the Supreme Court of Canada clarifying a number of important concepts in administrative law. Mavis Baker, a Jamaican National, was ordered deported in 1992 after having been in Canada illegally for over 10 years. She had entered Canada in 1981 as a visitor and subsequently had four Canadian-bornchildren while working illegally as a domestic. In an effort to avert immediate deportation, she sought an exemption from the requirement to apply for permanent residence outside Canada, and based her application on humanitarian and compassionate grounds pursuant to the Immigration Act, R.S.C., 1985, c. I-2. By letter, an immigration official denied her an exemption, stating that there were insufficient grounds to warrant an exception. Although no reasons for the decision were contained in the letter, following a request by her counsel, Ms. Baker was provided with the notes used by the immigration decision-maker,notes which had been prepared by another immigration officer. Ms. Baker appealed to the Federal Court of Canada, Trial Division.
The Federal Court dismissed her application for judicial review. Simpson J. rejected her arguments that the notes evidenced a reasonable apprehension of bias, as well as her submission that the Convention on the Rights of the Child, gave rise to a legitimate expectation that the children’s interest would be a primary consideration.
The Federal Court of Appeal restricted their analysis to the certified question before them of whether federal immigration authorities had to treat the best interests of the Canadian child as a primary consideration when it assessed Baker under section 114 of the Immigration Act. It decided there was no legal obligation to do so and dismissed the appeal.
The Supreme Court of Canada recognized and seized the opportunity to clarify and elaborate a number of administrative law principles beginning with the duty of fairness. There were three questions on appeal: (1) the certified question from the court below of whether the immigration official improperly exercised his discretion pursuant to s. 114 of the Immigration Act in failing to treat the best interest of the Canadian Children as a primary consideration; (2) whether the scope of appellate review was restricted to the certified question and issues related to it; and (3) whether the principles of procedural fairness were violated in this case. The majority answered the first question in the affirmative. They found that the exercise of discretion was unreasonable, but answered the second question in the negative. On the last issue L’Heureux-Dube J., writing for the majority but on this issue reflecting the opinion of the Court, tackled the challenge of setting out the principles relevant to the determination of the content of the duty of procedural fairness.
As a starting point, L’Heureux-Dube J. first acknowledged that the duty of procedural fairness is flexible and variable,and depends on an appreciation of the context of the particular statute and the rights affected. She explained that those affected by the decision must be afforded the opportunity to put forward their views and evidence fully and to have them considered by a decision-maker. Although stressing that the list is not exhaustive, she set out the following five criteria as relevant to determining the content of the duty of fairness in a given set of circumstances: (1) consideration of the nature and process of the decision being made; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected, (this was highlighted as a significant factor); (4) the legitimate expectations of the person challenging the decision, and (5) the choices of procedure made by the agency itself. Against these factors, she then assessed those things: whether the principles of procedural fairness had been violated with regard to the participatory rights accorded to the appellant; the failure of the immigration decision maker to initially provide reasons for his decision; and whether the notes reflected a reasonable apprehension of bias.
The first of these is the participation required by fairness in these circumstances.
In holding that Baker’s participatory rights had not been violated, the Court explained that an oral hearing is not a general requirement for applications based on humanitarian and compassionate grounds.
The Court then turned to the need to give reasons.
The Court accepted that in cases where there is a statutory right of appeal and where the decision has important significance for the individual some form of reasons should be required. It held that here the notes provided were to be taken to be the reasons of the decision and thus satisfied the requirement for reasons under the duty of fairness.
Finally the Court discussed the fairness requirement of an absence of bias on these facts. The notes failed to satisfy the Court that the duty of procedural fairness had been executed without a reasonable apprehension of bias. L’Heureux-Dube J. explained that although the standards for reasonable apprehension of bias may vary depending on the context, because immigration decisions necessarily relate to people of diverse backgrounds,they must reflect a recognition of diversity, an understanding of others and an openness to difference. She held that the notes,and the manner in which they were written, did not. On this ground the appeal was allowed.
The court then went on to discuss the issues raised by the discretionary nature of the Minister’s decision in this matter. While the Court’s decision concerning the reasonable apprehension of bias would have been sufficient to dispose of the appeal, its additional comments are most welcome. L’Heureux-Dube J. sets out the approach for the purposes of administrative law that a court should take to decisions involving significant discretion. She offers a road map for evaluating the degree of discretion and the ingredients to be looked to in the determination of the standard of review of that decision.
In the end the decision at stake here was set aside both because of a reasonable apprehension of bias which violated fundamental fairness and because the exercise of discretion involved was found to fail a “reasonableness” standard of review.
The importance of this case is that it provides a clear and comprehensible elucidation of a number of the most challenging concepts in administrative law. The catalogue addressed by this case contains some of the major elements of administrative law. The concept of fairness is thoroughly addressed in terms of the obligation to accord participation rights, the requirement to deliver written reasons and the notion of bias. The role of the courts in reviewing administrative decisions which are taken within significant legislative latitude is elaborated. Finally, definition is added to the emerging middle standard of review namely that of strict reasonableness.
In summary, this is again an example of the Supreme Court of Canada using its position to assist in clarifying difficult concepts of law that are applied on a daily basis across the country.
The last two cases I want to deal with are important in themselves. However, I have chosen them because they are perhaps contrasting examples informing the contemporary debate about judicial activism versus judicial minimalism. In what circumstances can the court appropriately change the law? Dobson (Litigation guardian of) v. Dobson (S.C.C. July 9, 1999),  174 D.L.R. (4th) 1
On March 14, 1993, Cynthia Dobson, who was 27-weeks pregnant at the time, lost control of her car during a snowstorm and struck an oncoming vehicle. Her son, Ryan Dobson, was delivered prematurely by cesarean section later that day. The permanent mental and physical impairment, including cerebral palsy, from which he suffers is partially attributable to the injuries he sustained during the accident while in utero. Ryan Dobson, the infant plaintiff by his grandfather and litigation guardian, launched a tort claim against his mother for the damages he sustained. It is alleged that the collision was caused by his mother’s negligent driving. This is the first case in which Canadian courts have examined the theory of maternal tort liability for prenatal negligence. The broad issue of whether a mother should be held liable for damages occasioned to her child during pregnancy sparked furious debate and public concern. The legal question before the courts was whether Ryan Dobson had the requisite legal capacity to bring a tort action against his mother for her allegedly negligent act while he was in utero. Three levels of court considered this question.
Miller J., of the New Brunswick Court of Queen’s Bench, held that Ryan Dobson had the legal capacity to sue his mother for injuries caused by her prenatal negligence. He based his decision on two principles of tort law: first, that there is no common law bar to actions in tort by children against their parents; and second, that the courts have utilized the juridical personality of the foetus as a fiction to protect future interests. In other words a child can sue a third party for damages sustained afterbirth from injuries suffered while in utero.
The New Brunswick Court of Appeal dismissed the appeal and further concluded that to hold otherwise would create a partial exclusion to a pregnant woman’s general duty to drive carefully. The mother again appealed the decision.
The Supreme Court of Canada allowed the appeal. The Court decided that it would not be appropriate to extend the legal duty of care imposed upon a pregnant women to her foetus. It explained that to do so is clearly, and more appropriately,within the purview of the legislature.
The Court applied the two-step test set out in City of Kamloops v. Nielson, to determine whether the appellant, should be held liable to her child under the present case. The Kamloops test requires that before imposing a duty of care, the court must be satisfied that (1) there is a sufficiently close relationship between the parties to give rise to the duty of care, and (2) that there were no public policy considerations operating to negate or limit the scope of the duty, the class of persons to whom it is owed, or the damages to which a breach may give rise.
It was the conclusion reached with respect to the second branch of the Kamloop’s test which determined the outcome of the appeal. The majority found that significant policy concerns militated against the imposition of maternal tort liability for prenatal negligence. Writing for the majority, Cory J. defends this position by referring several times throughout his judgement to the legislature as “the more appropriate forum for the consideration of such problems and the implementation of legislative solutions to them”. He expressed agreement with the notion that “to subject the day-to-day decisions and acts of a women concerning her pregnancy to judicial scrutiny is not properly a question to be decided by a mechanical application of logic”. In other words, it ceased to be a matter of applying a rule of law to the facts a hand. Rather the creation of a new rule of law was required, a direction that the majority declined to pursue. Throughout his written judgment, Cory J. elucidated the point that deference to the legislature in certain situations is the appropriate response by the courts.1
In summary the Supreme Court of Canada decided the legal question in issue and redirected a policy determination to the legislative arena. British Columbia (Public Service Employee Relations Commission) v. BCGSEU (S.C.C. September 9, 1999) not yet reported
In a unanimous decision, the Supreme Court of Canada are placed the conventional bifurcated approach of analyzing discrimination as being ‘direct’ or ‘adverse effect’ discrimination with a unified approach. It adopted a straight forward, simplified three-step test as the applicable test for determining whether an employer has established an enforcement standard found to be discriminatory is a bona fide occupational requirement (“BFOR”). The Court was prompted to reconsider the conventional approach and the possibility of replacing it with an improved version because of the invitation to do so by the parties to the action.
The facts of the case are straightforward. A female firefighter was employed for three years by the British Columbia Ministry of Forestry as a member of a firefighting crew. While her supervisors found her work during her three-year tenure to be satisfactory, she was fired after she failed to meet the minimum aerobic standard component of physical fitness standards established by the Ministry. The standards and the tests had just recently been developed in response to a 1991 Coroner’s Inquest Report. The firefighters’ union brought a grievance on her behalf.
The arbitrator deciding the grievance found that no credible evidence showed that the prescribed aerobic capacity was necessary for either men or women to perform the work of a forest firefighter safely and efficiently. Further the evidence indicated that, owing to physiological differences, most women have a lower aerobic capacity than most men and that, unlike most men, most women cannot increase their aerobic capacity enough with training to meet the standard set by the Ministry. The Ministry failed to prove that the female firefighter constituted a risk to herself, the public or her colleagues, and thus had failed to discharge its burden. Consequently, the arbitrator held that the claimant, in showing a disproportionately negative effect on women as a group, had established a prima facie case of “adverse effect” discrimination and ordered her reinstated together with compensation.
The British Columbia Court of Appeal allowed the appeal and concluded that, so long as the standard is necessary for the safe and efficient performance of the type of work and is applied through individualized testing, there is was no discrimination. The Court did not feel that it was necessary to distinguish between direct and adverse effect discrimination.
Speaking for a unanimous Supreme Court of Canada McLachlin J. clearly explains the different conventional approaches to”direct” discrimination and “adverse effect” discrimination established in the case law.
Direct discrimination is where a standard applied by an employer is discriminatory on its face. Adverse effect discrimination is where the standard applied by the employer is neutral on its face, but carries a discriminatory affect.
In the case of direct discrimination the jurisprudence was clear that the employer must establish that the standard contained of is a bona fide occupational requirement by showing that it was imposed honestly and in good faith, not designed to undermine the objectives of human rights’ legislation and that the standard is reasonably necessary to the safe and efficient performance of the work, not placing an unreasonable burden on those to whom it applies. Failure to establish this results both in success for the complainant and the standard itself being struck down.
On the other hand, the jurisprudence had devised a different analysis for adverse effect discrimination. The bona fide occupational requirement defence did not apply. Once prima facie discrimination has been established the employer need only show that there is a rational connection between the job and the particular standard and that it cannot further accommodate the claimant without incurring undue hardship. If the employer cannot discharge this burden the claimant succeeds but the standard itself always remains in tact.
This divergence of approach has over the years been subjected to withering academic attack. In taking up the invitation of the parties to revisit the appropriateness of having different approaches McLachlin J. was conscious of this together with six other significant factors that in her view led to the conclusion that this divergence should be jettison, and replaced by a unified approach.
The factors were these: the artificiality of the distinction between direct and adverse effect discrimination; different remedies depending on the method of discrimination; the questionable assumption that the adversely affected group will always be a numerical minority; difficulties in the practical application of employer’s defences; the possible legitimizing of systemic discrimination; the dissonance between these conventional analyses and the express purpose in terms of the Human Rights Code and finally the dissonance between human rights analysis and Charter analysis.
This set of factors moved McLachlin J. to develop a unified approach that would be applied regardless of whether the discrimination at stake could be said to be direct or adverse effect.
The unified approach adopted by the Court is as follows. Once a prima facie discriminatory standard has been established (regardless of whether the standard would otherwise constitute direct or adverse effect discrimination), a three-step test should be adopted for determining whether the employer has established that the standard is a bona fide occupational requirement. First, the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job. Second, the employer must establish that it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment to that legitimate work related purpose. Third, the employer must establish that the standard is reasonably necessary to the accomplishment of that legitimate work related purpose. To show this it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
In a very real sense then this decision can be seen as creating new law.
Was it appropriate for the court to decline to change the law in the first of these cases and to be prepared to do so in the second? I would argue that the court was appropriately minimalist in Dobson and appropriately activist in the British Columbia (Public Service Employee Relations Commission) case.
In Dobson to change the law would have taken it into an entirely new social policy area with difficult choices to be made each of which might carry with them uncertain implications. Can the interests of the mother and foetus properly be separated and if so to what degree? What are the costs and benefits of doing so? The court is perhaps not as well suited as a legislative body to gather the necessary information and make the judgments required to determine whether such a move is wise or not.
By contrast in the British Columbia case the court is essentially changing its own construct. How discrimination in the workplace is to be effectively analyzed is something the courts have dealt with for decades now. They have had great experience in this area and are able to properly evaluate the implications of continuing the existing approach or changing it. Indeed I would argue they are better placed to do this than is a legislature.
Hence I think in the context of the debate about judicial activism both cases reached the right result. They demonstrate that while our Supreme Court can be activist when it is appropriate it is not invariably activist. The debate about when judicial activism is appropriate will be with us for decades to come. These two cases provide no more than a context in which the debate will continue. Views as to when activism is appropriate will inevitably differ. However, when our senior court cane engage in activism in a way which seems clearly defensible on a variety of grounds and avoid judicial activism where this is lacking – that is the degree to which the court will have performed the toughest judicial act there is.
* Law Clerk Court of Appeal for Ontario
1 For example, Cory J. States at paragraphs 48, 51, 57 and 64, respectively:
“If, as a society, Canadians believe that children who sustain damages as a result of maternal prenatal negligence should be financially compensated, then the solution should be formulated, after careful study and debate, by the legislature.”;
“Finally, if the existence of motor vehicle insurance is to be relied upon as the basis for imposing a legal duty of care upon pregnant women, then this solution should be enacted by the legislature. A specific and insurance- dependent rule of tort liability cannot, and should not, be created by the courts.”;
“Indeed, I doubt whether any court can articulate a sound legal test, which is both theoretically coherent and workable in practice, that could effectively limit maternal prenatal liability to cases of motor vehicle negligence. Ultimately, only the legislature can create such a narrow and specific basis of tort liability.”;
“With respect, the U.K. legislative solution to the issue at bar cannot be interpreted as support for the test suggested by the Court of Appeal. To do so presumes that it is appropriate for courts to resolve an extremely sensitive and complex issue of public policy and insurance law.”