We recently had the pleasure and privilege of appearing before our Country’s top court. The experience was fascinating and exhilarating.
We act for individuals in a proposed class proceeding against 407 ETR. The class proceeding is relatively focused and specific. It deals with 407’s statutory debt enforcement remedy of Vehicle Permit Renewal Denial and its use by 407 in the face of bankruptcy.
Section 22 of the 407 Act allows 407 ETR to notify the Registrar of Motor Vehicles to withhold Vehicle Permit renewal where individuals owe 407 toll debts and other charges after a specified period of time. The Registrar of Motor Vehicles has no discretion and must refuse to grant Vehicle Permit renewal to such individuals.
407 maintains that even after an assignment in bankruptcy and after a discharge from bankruptcy, the Vehicle Permit Renewal Denial remedy continues, the result of which we say is that it coerces payments from individuals post-bankruptcy, which are debts that are released by the bankruptcy. Alternatively, individuals who want their Vehicle Permit renewed, make payment from post-discharge assets, violating the order of priorities under the Bankruptcy and Insolvency Act.
We commenced the class proceeding a few years ago, however, after that, a ruling was issued by Justice Newbould in the Ontario Superior Court of Justice in Toronto, in another action, which essentially “blessed” the conduct of 407 ETR that we complain of.
The Superintendent of Bankruptcy became aware of the decision and appealed the ruling as the litigation between 407 ETR and the toll debtor was settled. We intervened in the appeal brought by the Superintendent of Bankruptcy and eventually had a hearing before the Ontario Court of Appeal in June, 2013. The decision of the Court of Appeal was released in December, 2013, and was reported in the Ontario Reports in The Superintendent of Bankruptcy v. 407 ETR Concession Company Limited et al., 118 OR 3d 161 C.A. The issue was decided in favour of the Superintendent of Bankruptcy. The Court of Appeal concluded that section 22(4) of the 407 Act was inoperable in the event of bankruptcy on the basis of a constitutional paramountcy argument. The ruling was favourable to the proposed Representative Plaintiffs in our class proceeding.
407 sought and was granted leave to appeal to the Supreme Court of Canada. We once again sought to intervene and our application was granted. The Attorney-Generals of Ontario, Quebec, Saskatchewan, Alberta and British Columbia also intervened. The appeal was argued on January 15, 2015.
The entire experience, from beginning to end, was absolutely fabulous. It represents a career landmark for both of us. We have both been to the Ontario Court of Appeal many times, however, this was our first trip to the “big house” in Ottawa.
We flew down to Ottawa the evening before the appeal and met with our Ottawa agent, Eugene Meehan, Q.C. who’s assistance and guidance was absolutely invaluable. Eugene, Marie-France Major and their team at Supreme Advocacy handled all filing and procedural issues for us so we did not have to be preoccupied with those issues and could instead focus our energies on the substance and merits of the appeal.
We met with Eugene at our hotel the evening before the appeal and he provided us with the benefit of his wisdom and experience. Eugene is one of the most senior and experienced lawyers who practice and appear regularly before the Supreme Court of Canada.
After a restful night of sleep at the Chateau Laurier Hotel, Eugene met us for breakfast at 7:00 a.m. and accompanied us over to the Supreme Court of Canada building. We entered the building on the east side. Eugene knows all the security guards and court staff so our entrance to the building was seamless. Once through security, counsel are required to check in at the Registry and then proceed to the court room to stake-out a spot.
There were many lawyers appearing on the appeal as each of the Attorney-Generals were in attendance as were at least two counsel for the main combatants. The appeal was heard with another appeal involving a similar type of paramountcy argument in relation to the Alberta Traffic Safety Act. The Alberta parties were obviously present as well.
On Eugene’s advice and guidance, we staked-out our spot in the court room very close to the front. Eugene told us to get as close as possible in order to be in the best position to read the facial expressions and the body language of the Justices.
The Supreme Court of Canada building itself is a wonderful building. It has been situated at the present site since 1882. The present building began construction in 1938 and was completed in 1941, but was used to house wartime government offices until the court took possession in 1946.
The Supreme Court building has a heritage designation. It is situated just west of the Parliament Buildings on a bluff high above the Ottawa River. The imposing structure contains an amazing grand entrance hall, the Supreme Court’s main court room, Justices’ offices and conference room, offices of administrative staff, a library and two courtrooms used by the Federal Court of Canada and Federal Court of Appeal.
Our appeal was designated for an early start at 9:00 a.m. given the number counsel involved. The mood in the courtroom before the hearing was electric. It was charged with energy and excitement, much more than tension or anxiety. Most of the lawyers involved were relatively senior counsel and some had appeared before the Supreme Court of Canada on a prior occasion, however, most were either rookies or relative newbies. All were excited to have the pleasure and privilege of appearing before that court.
The court is called to order through the clerk and the announcement of “La Cour/The Court” and the opening of the two large doors behind the judicial dias. The members of the court enter in single file according to seniority with the Chief Justice leading and the members of the court fanning out right and left to occupy their places. It is quite a regal, ceremonial procession.
The Chief Justice called the case and the hearing began. In advance, the court had issued an order as to amount of time for each counsel and the order in which submissions would be presented.
There is little time for triviality. The court is interested in getting down to business right away and getting on with the argument.
For about the first five minutes, the court members sat quietly listening to the argument of the appellant without interruption. At about the five minute mark, the first questions began, first from Justices Abella and Karakatsanis and then from Justices Rothstein, Cromwell, Gascon, Chief Justice McLachlin, Justices Moldaver, Wagner, and newly-appointed Cote.
All nine of the court members were incredibly engaged and obviously well prepared. We had what is known as a “hot bench”. While sometimes expressing strong views and raising difficult questions, they were always polite, cordial and deferential. They seemed genuinely appreciative for the submissions and assistance of counsel.
Having an opportunity to appear before and make submissions to the Supreme Court of Canada was fabulous. The experience was enjoyable from beginning to end. It truly was equivalent to a fantastic thrill ride.
At the end of the appeal and after the close of court, all counsel were genuinely congratulatory of each other. There was a great deal of chuckling, hand-shaking and back-patting. It seemed that all experienced the same endorphin high as we did, resulting in something similar to a “group hug” of the twelve or fifteen counsel involved. It was truly an honour to be part of such a group and to experience collegiality and camaraderie at that level.
We both hope that we get to go back to the “big house” in Ottawa one day.