Howard Levitt: Arguing a case at Canada’s top court is an intense and rewarding experience

Here’s what it’s like to successfully argue a case before the Supreme Court of Canada

Since Friday, when the Supreme Court of Canada released a decision involving a case that I argued, many friends and colleagues have asked me what it is like to appear before our country’s top court.

There are not many cases in employment law that have gone that far — just over 30 in Canadian legal history. I have been lead counsel in three, which does not sound like a lot, except when you realize that that is two more than anyone else.

To get leave to argue a case before the Supreme Court, you have to first obtain leave to appeal, which requires you to establish that the issue in your case is one of public, national importance.

Over the last few years, I thought that the employment law issue that I most wanted to take before the court involved provisions in contracts cutting off bonuses, stock options and other benefits after an employee was terminated. Although most Canadian courts enforced those contracts, they struck me as fundamentally inequitable. After all, if an employee was dismissed without any cause and the notice period provided by the court would take them to a date at which a bonus or other benefit would have been otherwise paid, it was unjust for that employee not to receive it.

As I discussed in a recent column, Supreme Court decisions have generally favoured employees. The Court has stated that the very role of the courts was to rectify the imbalance of bargaining power in the usual employment relationship. As such, and given that close to half of Canadian employees have bonuses or other forms of remuneration beyond salary and thus could be affected by such a case, it seemed there was a good chance the Court might change the law respecting these contracts if that issue ever appeared before it.

Then 24 months ago, Dave Matthews walked through my door. I found my case.

Matthews was entitled to a bonus when and if his employer, Ocean Nutrition, was sold, which he believed would be reasonably imminent. His bonus contract said he had to be employed at the time of the sale to collect it.

But the trial judge found that Matthews’ boss had been deceitful to him to such an extent that, much as he wished to remain employed to collect that bonus, he was ultimately forced to resign.

The trial judge awarded Mathews 15 months notice. The sale occurred 13 months after he resigned so within the 15 months notice period. If he had been employed at the time, his bonus would have been $1.1 million. As a result of his contract, he forfeited it even though the court agreed that he had been constructively dismissed through no fault of his own.

The issue before the court was whether he was entitled to that bonus notwithstanding the contract.

When I met him, Matthews had just lost 2-1 before the Nova Scotia Court of Appeal. It was a bitterly fought case. The majority and dissenting opinions took issue, right in their judgments, with the rulings of the other. I have seldom seen that. The dissenting judgment of Justice Ted Scanlan particularly caught my eye (and I thought it would attract that of the Supreme Court’s as well).

“Some might say that as judges we are not entitled to consider the morality of the result,” Justice Scanlan noted in his dissent. “To that I say that a result that is morally unconscionable is usually legally indefensible.”

Justice Scanlan went on to say, “I do not accept that the parties intended to agree that a rogue manager … could engineer the dismissal of a valued long-term employee through a series of lies, deceit and manipulation so as to result in that employee not being entitled to share in the value he was so essential in creating.”

Matthews had interviewed many lawyers across the country about arguing his appeal to our highest court and was undecided between Eugene Meehan and myself. Eugene had clerked at the Supreme Court and has a practice devoted to Supreme Court work. I proposed to Dave that he could have the best of both worlds. With my substantive knowledge of employment law, I would take the case but we would use Eugene and his team as our Ottawa agent and have the advantage of his insights into the Court and practise. He agreed. Eugene and Marie-France Major added real value in countless ways throughout.

Given that Dave was exhausted from nine years of litigation, I also agreed that I would not charge him unless he won — perilous, given the historic prospects of even getting to the court. But an appearance at our top court is worth that risk.

It is tough to get before the court. It only hears roughly 70 cases a year from across Canada in all areas of the law. Many of those 70 spots are filled by criminal law cases and referrals from provincial governments which proceed to the court as of right. That leaves less than 50 spots for the balance for which you must seek the court’s leave. Aspiring cases with which ours had to compete covered the gamut of important issues, Aboriginal rights, natural resource law, constitutional disputes, family law, Charter litigation, everything. On the day our leave was heard, 28 cases from all areas across Canada were on the docket. Only one leave was granted. Ours.

Then there was the big day: Oct. 8, 2019.

We were the first case of the session and we knew that the court would be ready for us. One does not become a Supreme Court judge by accident. Every one is at the top of their profession with matching confidence. Each Justice has four law clerks, taken from the top students from the top law schools in the land. So facing seven judges (two were not sitting this day), we had 35 brilliant minds in all preparing questions and probing for weaknesses in every position we took. We only had an hour and, not more than a minute in, the cross-examination by the court commenced. As in my other appearances there, it was among the most intense intellectual experiences of my life. I have appeared before several of our province’s Courts of Appeal. This was at yet another level.

When it was time for the opposing counsel to argue, the court was no less relentless. The highlight for me of Ocean’s counsel’s grilling was when one of the Justices asked whether she acknowledged that Ocean had acted in bad faith. All she would acknowledge was “some bad conduct.” I thought, “Failure to concede the obvious won’t help her.”

In the end, we won a unanimous decision with two principles emerging. First, it will be very difficult for any contract to deprive an employee of benefits that they would have earned during the period of notice awarded by the court. Second, if employers act in bad faith during the employment relationship, employees who suffer damage can have recourse.

How that will end up being interpreted will be the subject of future cases.

To fight nine years from the beginning to get to this stage takes resolution. Matthews was one of those relatively few clients who did it largely on principle, with the court even noting the “doggedness” of his (and our) efforts. He wanted to ensure that no one would experience what he did. And you know what? He succeeded and changed the law.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.