Judicial Biography: Justice Suzanne Côté

Post 7/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019)

Introduction

When asked in a CPAC interview whether she believes the Supreme Court of Canada (“SCC” or “the Court”) is a place laden by tradition, Supreme Court Justice Suzanne Côté’s response is forward-oriented.

“When I started to study law,” she says, “I had the perception that the Supreme Court was more traditional than it is now. I had the impression that these Justices were people you could not reach — like living in another world. That perception I had when I started to study law has changed. I think that we have some traditions, we need to keep these traditions […] But I think that the Court is a younger court now and is not as traditional as it was before. Again, it follows the evolution of the society.”

The fact that Justice Côté has already garnered herself a reputation as the high court’s most frequent dissenter is linked to her forward-thinking approach. She made this connection herself in an interview, recognizing disagreements as a necessary part of evolving the law, and it’s a connection that has been made before — in a piece published by the Osgoode Hall Law Journal in 2000, former Justice L’Heureux-Dubé, the Court’s most frequent dissenting voice prior to Justice Côté, referred to the dissenting opinion as the “voice of the future.”¹

Appointed in December of 2014 by then Prime Minister Stephen Harper following former Justice LeBel’s retirement, the then-56 year-old Justice Côté was the first woman to be nominated straight out of a career in private practice — a career in which she had garnered numerous accolades and a reputation as one of Quebec’s shining litigators.

This post will discuss Justice Côté’s journey to the bench, the circumstances of her appointment, and the identity she is carving out as a Justice of the Supreme Court.

Biography

Born and raised in the Gaspé Peninsula in Quebec, the judge reportedly dreamed of a career in law since she was 11. She received her law degree at Université Laval and during her studies, worked at a small law firm in Gaspé. Not long after she was called to the Quebec bar in 1981, she bought half of the same firm, assuming a position as a leader in the close-knit community.

Justice Côté made her move to Montreal in 1988 when she assumed a position as a litigator at Stikeman Elliot LLP, where she practised for 23 years and eventually became partner and head of their litigation group. From there, she went on to become head litigator and partner at Osler, Hoskin & Harcourt LLP’s Montréal office in 2010. It is from this position that she assumed her place on the bench in 2014.  

Justice Côté received wide and consistent praise for her seasoned career in private practice. Apart from being recognized in numerous legal publications, a list of which is published on the Supreme Court’s website, she was also named one of the best commercial and civil litigators in Canada in 2014 and was presented the Advocatus Emeritus distinction by the Quebec Bar in 2011. Her mentor at Stikeman Elliot described her as an “extremely aggressive advocate,” a title she consistently lived up to throughout her time as litigator.

The Bench

The process surrounding Justice Côté’s appointment wasn’t without controversy. The Harper Government’s nomination was the second within 6 months to occur under the suspension of the formal appointments process (the other being Justice Clément Gascon). This meant that Parliament did not get a chance to question Justice Côté prior to her swearing in, an exclusion that some saw as a “disrespect for the public,” although few disputed her eminence and suitability for the position.  

In a study conducted on the trends in Justice Côté’s decisions, her time on the Court so far has revealed a clear willingness to be the dissenting voice on the bench. At the time of the study, in March of 2018, a review of the 150 decisions Justice Côté had been involved in revealed that she dissented in one of every three cases. Although she has acted as the voice of the majority on several significant occasions — such as Fleming v. Ontario, 2019 SCC 45, and Quebec v. Bombardier, 2015 SCC 39 — it’s her dissenting opinions in administrative law decisions and her unconventional tendency to dissent in leave to appeal applications that I will analyze, largely for the hand they have played, perhaps more so than her majority opinions, in crafting her identity on the bench.

The Dissent in Quebec v. Guérin

An area in which Justice Côté’s strong dissenting voice is particularly felt is that of substantive review in administrative law. An upcoming trilogy of cases — Vavilov, Bell Canada and National Football League — is expected to decide whether the law regarding standards of review of administrative decision-makers as written in the landmark decision in Dunsmuir v. New Brunswick, 2008 SCC 9, will continue to stand. Justice Côté’s strong dissents in the administrative law decisions in the past few years, in the view of some administrative law scholars, have paved the way for what is expected to be a legal milestone in the area.

Her dissenting reasons in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 [Edmonton East], co-written with Justice Brown, epitomizes  The taxpayer company, which owned the Edmonton East mall and had received a value assessment by the City of Edmonton amounting to $31 million, filed a complaint with the Assessment Review Board, disagreeing with the value assessment on the basis that it surpassed the mall’s market value and was inequitable in comparison to other properties and seeking a decrease in the assessment. During its review of the complaint, the City realized its error in the assessment and upon correction, re-evaluated the mall at $45 million. Pursuant to its powers under the Municipal Government Act, RSA 2000, c M‑26, s 467 [MGA], the Review Board increased the assessment value to $41 million. The decision, according to the MGA, can be appealed to the Court of Queen’s Bench on a “question of law or jurisdiction of sufficient importance to merit an appeal” (MGA, s 470(1)). The chambers judge at the Alberta Court of Queen’s Bench set aside the Board’s decision and ordered a hearing de novo, meaning the Board would have to hear the matter again.  

The issue before the Supreme Court was the appropriate standard of review for the Board’s decision. The majority judgement, written by Justice Karakatsanis, chose reasonableness, favouring deference and emphasizing the presumption of reasonableness when an administrative body is interpreting its home statute (Edmonton East, paras 20-23). However, the dissent argues for correctness. While recognizing that the body’s level of expertise “has become a catch-all trigger for deferential review in this Court’s jurisprudence” (para 82) and that context is obviously important, Justice Côté and Justice Brown are far more careful in their application of the presumption of the reasonableness standard. They seem to suggest a narrower approach to deference and a more cautious interpretation of Dunsmuir’s establishment of a single reasonableness standard — one that recognizes the confusion and inconsistency that such a highly contextual approach cultivates. 

Especially when read together with her similar dissenting opinions in other administrative decisions such as Guérin and her joint dissent with Justice Brown in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, Justice Côté’s pattern of dissent in this context is important. The way the Court leans on the deference issue is an overwhelming question clouding the current state and practice of substantive review and administrative law as a whole. Therefore, the way the Supreme Court Justices lean in the tension between judicial interference and the deference granted to administrative decision-makers in cases such as Edmonton East could be the catalyst for a momentous shift in the way administrative law is practiced in this country. Given her marked slant towards the correctness standard and her consistent skepticism of the presumption of reasonableness, it seems that Justice Côté’s willingness to be the dissenting voice on administrative law matters articulates an overarching confusion in the current administrative law framework. It is an articulation that may have made the space necessary for the Court’s upcoming clarification of the law.  

The Dissent in Leave to Appeal Applications

According to a study conducted by Vanessa MacDonnell, an Associate Professor at the University of Ottawa Faculty of Law, Justice Côté has also “adopted the unconventional practice of dissenting on leave applications.”² Although, statistically, this has only been 10 out of 958 leave decisions made during her tenure,³ it is still significant and unusual for leave applications at the Supreme Court — as MacDonnell writes, “since 2006, there have only been 11 dissents on leave applications”⁴ and 10 of these were by Justice Côté in the last 6 years. All 10 were in favour of granting leave. 9 were written by her alone.

While the areas of law of these cases varied, a majority of them were matters of private law, with a few being class action cases — neither of these are particularly surprising given Justice Côté’s own professional expertise and over 30 years of experience in commercial and class actions areas. Perhaps more pertinent than the matters being argued within these leave applications, however, is what this trend of dissent indicates symbolically.  

Like any common law institution, the Supreme Court of Canada is steeped in tradition, from the courtroom decorum to the red robes. And while it may not have been explicitly outlined, there has never been a practice of dissent on leave applications as lively and active as the one Justice Côté has spurred in her tenure. To break from this unspoken tradition is parallel to the forward-thinking mindset she spoke of in the interview that opened this post and hints heavily at a younger, evolving Supreme Court, pushing the status quo of what the Justices are willing to explore. In this wave, Justice Côté seems quite unafraid to diverge from convention.

Conclusion

With a decorated career as a litigator before her appointment, Justice Côté’s lack of prior experience as a judge to a lower court has not held her back from assuming her own identity on the bench in the past 5 years. In a relatively short tenure thus far, she has already earned a reputation as very willing to straddle a deep respect for the traditions of the Court with a refusal to allow custom to restrain her dissent. In her CPAC interview, Justice Côté says, smiling, “it would be very boring and, I think, very bad for justice, to have 9 judges always thinking the same way.”

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[1] Claire L’Heureux-Dubé, “The Dissenting Opinion: Voice of the Future?” (2000) 28:3 Osgoode Hall LJ 495.

[2] Vanessa MacDonnell, “Justice Suzanne Côté’s Reputation as a Dissenter on the Supreme Court of Canada” (2019) 88 Sup Ct L Rev (2d) 47 at 55.

[3] Ibid.

[4] Ibid.