Quebec Court of Appeal judge nominated for SCC brings strong expertise in class actions, family, civil law

In the media July 2019

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.

Quebec Court of Appeal Justice Nicholas Kasirer, the former McGill University law dean nominated July 10 for the Supreme Court of Canada, professes a passionate commitment to bijuralism; strong expertise in class actions, family and the civil law; and an approach to judicial lawmaking that encompasses both boldness and caution.

Those characteristics — along with his reputation for collegiality which should be welcomed at the increasingly fractured Supreme Court — are on display in his application to fill the top court’s Quebec seat that becomes vacant Sept. 15 when Supreme Court Justice Clément Gascon retires.

The 15,375-word “candidate questionnaire” contains a goldmine of relevant detail for litigators and other court watchers wanting to know more about the 59-year-old fluently bilingual collector of Canadian paintings — including Justice Kasirer’s most significant contributions to the law; his insights into “the variety and diversity of Canadians”; and his view on the appropriate role of a judge in a constitutional democracy.

The revealing document posted on the website of the Commissioner for Federal Judicial Affairs also discloses Justice Kasirer’s jurisprudential track record. So far the Supreme Court of Canada has upheld 10 of the 15 decisions in which he participated, while overturning three judgments (two appeals are still under reserve; leave to appeal was denied in 117 cases).

Kasirer, an ex-colleague of both Chief Justice of Canada Richard Wagner and Justice Minister David Lametti, was publicly identified early as a frontrunner for the post. He graduated from McGill with common law and civil law degrees, articled at Stikeman Elliott in Montreal, clerked for Supreme Court Justice Jean Beetz in 1987-88, and spent the next 20 years as a law professor at McGill, followed by 10 years on the Quebec Court of Appeal.

He will be the third full-time law professor on the court, joining Justices Russell Brown and Sheilah Martin, but is the only one not to have practised law before joining the bench.

Appointed to the Appeal Court by Prime Minister Stephen Harper in 2009, he has signed, alone or as part of a panel, approximately 2,000 judgments and decisions, including motions.

Nominated for the top court by Prime Minister Justin Trudeau on July 10, Justice Kasirer will participate July 25 in a question and answer session with a special committee of MPs and senators — after which the prime minister would (in the normal course) appoint him to the court. The judge’s appearance will be preceded the same day by an introduction from Lametti, who taught with Kasirer at McGill. Lametti will explain why the prime minister chose Justice Kasirer from a short list of three to five candidates compiled by a non-partisan eight-member advisory board, chaired by former Prime Minister Kim Campbell, and which included retired Supreme Court of Canada Justice Louis LeBel, now of Langlois lawyers in Quebec City.

“With his outstanding legal and academic experience, gained over a distinguished 30-year career, I know Justice Kasirer will be an asset to our country’s highest court,” Trudeau said when he announced the nomination.

The prime minister’s “excellent choice” was lauded by Independent Sen. Pierre Dalphond, a retired Quebec Court of Appeal judge who said in a statement that his former colleague, with whom he sat on dozens of appeals, “brings to the Supreme Court an exceptional legal expert, both in civil and common law, a great listener, who is curious and open-minded, an elegant writing style, an experienced appeal judge and a man with collegial spirit.”

Civil litigator Pierre Bienvenu, a senior partner with Norton Rose Fulbright Canada LLP in Montreal, told The Lawyer’s Daily he has no doubt the practising bar in Quebec “will greet this appointment with enthusiasm.”

“I couldn’t be more pleased by this appointment,” said Bienvenu, who noted that in court, Justice Kasirer is “known to be extremely well prepared” and focused on the real, rather than peripheral, issues of an appeal.

“He is first and foremost an internationally recognized civil law specialist,” Bienvenu advised. But the judge has also written important decisions in many fields, including criminal law, administrative law, family law and class actions.

“No one exemplified what we call bijuralism better than he does — this notion of civil law flourishing in parallel to English common law within Canada,” Bienvenu remarked. “He exemplified this because of his strength as a civil law specialist, but also because of his interest in comparing the approaches of the civil law and the common law. He was a great supporter of McGill’s trans-systemic teaching of private law.”

In their applications, candidates for the impending Supreme Court vacancy were required to identify, and elaborate on, their main areas of legal expertise, as well as other areas in which they have experience.

Justice Kasirer said “fundamental private law in the civil law tradition” is “at the core of my work” — both at the Court of Appeal and in his 20 years of teaching. He has delivered judgments (including some novel and cutting edge decisions) in property law, contract and civil liability law, human rights law, succession law, fiduciary law, intentional private law and commercial law.

Family law litigation on appeal, both under the Civil Code and the federal Divorce Act, “has provided me with an opportunity to continue intensive work in family and child law that I have been carrying on for more than 30 years,” Justice Kasirer wrote. “An interest in researching the social and historical context of the economic situation of married women constitutes a key foundation of my work as a judge, whether it involves child support/alimony, custody-sharing or division of property/assets.”

Among his many judgments in family law, the judge highlighted Droit de la famille-14175 2014 QCCA 216, a case involving a divorced couple of modest means, in which the court below denied the spousal support application of a longtime homemaker and criticized her lack of effort to find work after their children reached the age of majority.

“The issue is a familiar one: at what point does the inadequacy of the efforts made by an ex-spouse to become financially self-sufficient eliminate the ‘compensatory’ basis of spousal support sought under the Divorce Act, ” Justice Kasirer observed. “Despite the importance of the Supreme Court’s decision in Moge v. Moge, [1992] 3 S.C.R. 813, Quebec caselaw often gives predominance to the objective of promoting economic self-sufficiency and denies so-called compensatory support to ex-wives, trivializing the economic value of domestic work. On appeal, deference to the trial judge’s discretionary power can represent a major obstacle to intervention.”

Justice Kasirer explained that the Court of Appeal panel adopted an approach based on the concept of the wife’s loss of earning power — an approach inspired by American sources on the theory of alimony but that is also consistent with “the goal of harmonizing civil law and federal law.”

He also cited another one of his judgments in which the social context outside Quebec “was used to shed light on the difficulties faced by economically vulnerable women going through a divorce”: Droit de la famille-132380 2013 QCCA 1504.

The judge also pointed to several oft-cited decisions on class actions, including Option Consommateurs v. Infineon Technologies 2011 QCCA 2116 (affirmed by the Supreme Court, [2013] 3 S.C.R. 600) and the unanimous per curiam ruling last March in Imperial Tobacco ltee v. Conseil Québécois sur le tabac et la santé 2019 QCCA 358. The latter is “arguably the most far-reaching case in which I shared the preparation of unanimous reasons,” he said of the panel’s judgment which upheld two class action decisions finding three tobacco companies liable for injuries caused by smoking.

In criminal law, Justice Kasirer referred to his judgment in R. v. Diabo 2018 QCCA 1631, which rejected the Crown’s appeal from the sentencing judge’s refusal to impose a prison term on two Indigenous offenders who pleaded guilty to smuggling tobacco on a Mohawk reserve. The Crown argued that in light of the “scourge” of tobacco smuggling in the area, and what it saw as the offenders’ relatively fortunate social and economic circumstances, the judge below erred by not imposing a 90-day jail term for reasons of deterrence and denunciation.

In dismissing the appeal, Justice Kasirer explained that the Crown fell prey to the misperception, described in decisions by the Supreme Court, that the Gladue sentencing principles offer a race-based “discount” to Indigenous offenders.

“In Diabo, the Crown was not only mistaken in law, its appeal was predicated on a fundamental misunderstanding of the social context in which Indigenous peoples live, in particular the Mohawk community near Montreal,” Justice Kasirer wrote in his candidate questionnaire. He pointed out that the Supreme Court’s teaching in R. v. Ipeelee 2012 SCC 13, and the cases following it, “are not sufficiently well known in Quebec.”

Asked to briefly describe the appropriate role of a judge in a constitutional democracy, Justice Kasirer noted that while judges do not enact law in a constitutional democracy, they have long had a legitimate role in “law in the making.”

“... [I]ndeed the proper balance of power between and among the three branches of government turns, in part, on the notion that judges, as guardians of the rule of law, have a role in checking the authority of the legislative branch in a manner that fully respects the primary vocation of Parliament and the legislatures,” Justice Kasirer explained.

“Moreover, Canada is generally understood to be not just a constitutional democracy, but also a liberal democracy, in the philosophical sense, in which judges have been entrusted with the power to protect fundamental rights and freedoms, within limits imposed by the Constitution., against wrongful infringement by the state.”

However, Justice Kasirer also opined that acquitting a judge’s public duty to shape the law comes with “a duty to heed a ‘call to caution’ in the exercise of judicial power,” along “with a competing ‘call to confidence’, with something akin to imagination and boldness.”

The institutional and practical constraints of deciding cases invite caution, if not humility, from a judge contemplating a change of the law, Justice Kasirer advised. Litigation, he said, is not a forum for sorting out the appropriateness of policy, or the wisdom of legislation.

“At the same time, the call to caution is complemented by an unspoken injunction for judges to take up their public duty by showing imagination, and indeed some courage, in the pursuit of justice,” he wrote.

“Judges enjoy independence, and the presumption of impartiality, so they can resist the sway of public opinion in setting out their sense of what the law should be. It is in this spirit, I think, that judges have been right to embrace the duty thrust upon them to give full voice to Charter values, either when called on to consider striking down legislation as unconstitutional or in interpreting the law so its meaning conforms to entrenched fundamental freedoms. It resonates too when judges seek out ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada’ that are recognized and affirmed in s. 35(1)” of the Constitution Act, 1982, he wrote.

“Striking the right balance between these competing calls to caution and to courage is a central challenge in the exercise of judicial responsibility in a constitutional democracy,” Justice Kasirer asserted. “In my experience, they are not incompatible — there is an immense satisfaction in moving law resolutely forward, but only so far forward as is necessary to solve the problem at hand, leaving the rest for another day.”

Asked who are the audiences for the Supreme Court’s judgments, Justice Kasirer said the judgments perform a number of functions: decision making, normative, teaching, legitimizing and collegial.

He highlighted the importance of the parties, who bear the financial and emotional burden of litigation and of the interveners.

“The adequacy of the reasons must be measured, to a great extent, from the perspective of the parties,” he observed. “… [R]easons must be drafted with sensitivity: behind every seminal case in criminal law, for example, there is a victim, and people who identify with the victim, or perhaps a person who has been wrongly accused. There are also a trial judge and appeal judges who are entitled to reasons characterized by clarity and civility.”

Justice Kasirer earned an honours BA from the University of Toronto, and also a DEA (degree in advanced studies) from the Université de Paris I (Panthéon-Sorbonne). He holds an honorary doctorate from the Université de Sherbrooke in 2012. He is the author or editor, alone or with others, of more than a dozen books, including the Private Law Dictionary, as well as many articles in collections and periodicals.

He and his partner, Jane Mappin, an interpreter, choreographer and teacher of contemporary dance, live in Montreal’s Outremont neighbourhood. They are the parents of three adult children, including a Rhodes scholar studying medicine.

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