Tournament of Appeals: Granting Judicial Review in Canada

H. Graham Rawlinson is a corporate lawyer with the international law
firm Torys in Toronto. He is co-author of The Canadian 100: The 100 Most
Influential Canadians of the 20th Century.

This slim volume considers an often-overlooked but crucial fact about
decisions of the Supreme Court of Canada: that the court itself chooses
the cases that it will hear. Flemming argues convincingly that which
cases the court selects are nearly as important as the decisions on the
merits, and he offers an empirical social-science approach to trying to
build a framework for understanding which cases are heard, and why.

Relying chiefly on leave-to-appeal data from the early 1990s, Flemming
concludes that a host of institutional, structural, and social factors
influence which appeals the court decides to hear. In this respect, the
court’s behaviour resembles that of many other public institutions in
the way they choose which issues to deal with and which ones to ignore.
However, Flemming ultimately concludes that leave-to-appeal applications
emphasizing the novelty of a particular case, divergent lower-court
decisions, and, most notably, the public importance of a case are the
ones most frequently successful. In this, the Canadian Supreme Court
resembles its American counterpart in a general way, although Flemming
is careful to delineate the differences in the two courts.

Experienced appeal-court litigators may well argue that none of this
comes as any surprise: motivated litigants and their counsel have always
been able to parse the court’s leave-to-appeals decisions to fix upon
the buttons that successful applicants have pushed. Still, Flemming is
to be commended for bringing a rigorous empirical approach to a subject
that has heretofore been largely unexamined in Canada.