The 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,” Chief Justice Wagner said on the Canadian Bar Association’s Verdicts and Voices podcast Jan. 30. 2025.
Chief Justice of Canada Richard Wagner
The chief justice noted only a “very small” percentage of the hundreds of leave to appeal applications the Supreme Court of Canada decides each year rise to the “public importance” standard that must be met to garner leave.
“But there might be other cases which we don't take for hearing on the merits that might be dealt with by mediation,” he suggested. “So if we could have the staff and the budget and the way to deal with those cases, it might be one thing to consider,” he said, noting that it is “very early” in the Supreme Court’s exploration of the idea.
By way of example, the chief justice said family law cases might lend themselves to mediation at the high court. Mediation is mandatory in family law litigation in many provinces, but not at the appellate level, he said. “So maybe that would be one way to deal with those matters.”
Chief Justice Wagner said the idea of mediation at the Supreme Court was sparked by a discussion he had last year with his Brazilian counterpart, the chief justice of the Federal Supreme Court, which in 2020 implemented a Mediation and Conciliation Center, presided over by a retired justice of Brazil’s top court.
“I like to say that there is no Supreme Court in the world that has the monopoly of knowledge and wisdom so we can always find something interesting, useful, helpful from another Supreme Court in the world,” Chief Justice Wagner remarked.
Law360 Canada asked for more information and specificity about what the chief justice has asked court staff to look into. “At this time, we have no additional comments to share,” said Stéphanie Bachand, the Supreme Court’s executive legal officer.
“The idea is still in an exploratory phase,” she said.
Lawyers said they want to hear details, but shared some initial thoughts with Law360 Canada.
Eugene Meehan, Supreme Advocacy
Mediation at the Supreme Court of Canada is “a creative idea, even though some litigants may be slow on the initial uptake,” he suggested. “The idea of going to mediation after winning at trial or appeal, then potentially giving up some of their win to the other side, would be unpalatable to many.”
Yet Meehan said he sees offering mediation as potentially a “positive and smart initiative.”
“It’s definitely worth trying out at the Supreme Court, and if it works there, more reason to try it out elsewhere,” he remarked.
Gerard Kennedy, University of Alberta
“Mediation is generally to be commended, particularly in family law cases and I think many trial courts and even appellate courts across the country have successfully implemented mediation over the years,” Kennedy observed.
“I'm not saying that it's a bad idea for the Supreme Court to do so, particularly in private law cases. But fundamentally, the Supreme Court is meant to be a jurisprudential court” that provides legal guidance to the country, he said.
“So I think the role for mediation of the Supreme Court, though possibly real, is probably quite discrete and on the outskirts of what the Supreme Court is supposed to be doing in our constitutional order, because the reason the Supreme Court hears cases…is because important legal issues were raised. And by mediating them, you're not going to decide the issue.”
Kennedy also noted the “reasonable concerns” within the bar that the apex court has been hearing too few appeals in recent years to give Canadians enough legal guidance in private law matters.
“Mediation isn’t going to help that,” he remarked. “It's an interesting idea that is somewhat peripheral to the court's overall purpose.”
Paul-Erik Veel, Lenczner Slaght LLP
At the same time, Veel added, “I find it a little bit inconsistent with the Supreme Court's general institutional role that they might end up taking up some of their resources on mediation.”
“The court's primary function isn't to resolve individual cases. It's to make and clarify the law for other cases going forward,” he elaborated. “While I'm supportive of further efforts at mediation. . .my perspective would be that's something really our trial courts should be focusing. . .further efforts [on] to push parties into, if we think there's more need for mediation. And really the Supreme Court's focus should be on identifying, and deciding as quickly as possible, those cases of public importance that come before it.”
In his brief comments on the subject, Chief Justice Wagner indicated that the top court would require staffing and budget in order to provide mediation.
However, Veel suggested that any additional resources for mediation “could probably be better spent at the Superior Court level, where you have judges, day in and day out, doing pre trials and trying to do judicial mediation. . . trying to resolve cases in the trenches,” rather than on enabling the Supreme Court to “branch into something that isn't really its core institutional role in our justice system.”
Aaron Franks, Epstein Cole LLP
“The mediation bar, and the mediation process, is pretty robust in Ontario, and a lot of lawyers will recommend mediation” in family law cases, Franks said.
However, the best timing is before the parties spend their money on motions, trials and at the Court of Appeal, he noted. “That's when mediation can be most effective because once you've spent the money, the horse has left the barn, to some extent.”
He queried how many litigants would want to participate in mediation at the Supreme Court after the top court has denied leave to appeal.
“It seems to me that the...party who successfully defended leave most commonly would say, ‘Well, what? Why are we trying to settle? I just won at the Court of Appeal, and there's no leave. So what are you talking about, [do I] want to settle?’”
“It may be that I'm not understanding what the chief justice is proposing,” Franks remarked. “But it seems to me that mediation is a really, really good and really, really popular thing before you spend the money [on litigating up to the Supreme Court]. Once you get up to Ottawa, I would be somewhat surprised if there were a whole lot of takers at that point.”
Eric Sadvari, Kenet Family Law PC
He asked: If someone wins at the Court of Appeal, and then the Supreme Court denies leave, why would the successful litigant negotiate something different?
However, family law is not necessarily static, particularly when children are involved, Sadvari acknowledged.
“If you're dealing with parenting issues, there can be changes,” he noted. “That said, you're really talking about a very small subset of cases in which, [in] a mediation after leave to appeal has been denied, there's anything left to really fight about.”
He also questioned whether the existence of a mediation service at the top court for family law cases that are denied leave to appeal could lead to the Supreme Court hearing fewer family law appeals.
“Is this going to be used as a means to say, ‘We're going to deny leave to appeal, and we'll shunt them off to mediation’?” he speculated. “Already there are very few cases that make it to the Supreme Court in family law, partially because we do have provincial laws that differ, when it comes to property in particular. So when we're not getting a lot of cases heard by the Supreme Court, does this mean that we're going to have even fewer? And in a context in which you've heard from the highest court of the land: ‘You're not going to be heard, but here try mediation,’ what is the incentive for people to negotiate in good faith?”
If the aim is to introduce alternative dispute resolution into the process at the Supreme Court of Canada, Sadvari suggested the best stage would either be before the top court rules on leave to appeal or, after leave is granted, but before the appeal is heard.
“That's the moment at which an ADR process probably. . .is most likely to serve the individual parties, even if it's at the expense of the greater Canadian public not having a Supreme Court decision on the law,” he suggested.
Sadvari added that he would love to see more ADR in family law, “probably earlier [in the process], including promoting it at the original appeal stage.”
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