What Will Justice Nadon’s Appointment Bring To The Supreme Court?

Background

Earlier this week, the Prime Minister surprised many Supreme Court-watchers by nominating the Honourable Marc Nadon to replace Justice Fish at the Supreme Court of Canada. Given this recent appointment, the Canadian Appeals Monitor has taken a look at Nadon J.'s jurisprudential legacy to date and identified key cases which illustrate his judicial leanings, especially as it applies to Canadian businesses and professions. The Canadian Appeals Monitor has also looked at some of the cases that Nadon has argued to get better insights into what kind of judge he is likely to be in the Supreme Court.

In reviewing the cases noted below, the following themes emerge:

Nadon J. is focused on clear parliamentary intention and is deferential to parliament, even when he does not agree with the legislator1; Nadon J. has a clear doctrinal approach and is reluctant to extend the law or to revisit issues already decided upon in existing case law; Nadon J. tends to emphasize the plain and simple meaning to the words of a statute. For example, he reproduces large excerpts of the legislation he is dealing with, in both French and in English, in the text of his decisions. This is in contrast to many judges who reproduce smaller portions of relevant legislation or appendix the actual text to the end of their decision; Nadon J. is equally concerned with procedure and places the utmost importance on the parties' fulfillment of their respective burdens of proof2. Jurisprudence

Tax

GlaxoSmithKline Inc. v. Canada, 2010 FCA 201, upheld by Canada v. GlaxoSmithKline Inc., 2012 SCC 52: At issue in this case was the appropriate transfer price for an active pharmaceutical ingredient between related companies. The CRA argued that the appropriate transfer price was what the generic companies paid for the identical ingredient. GlaxoSmithKline Inc. argued that other circumstances had to be taken into account in determining a reasonable arm's length price.

Writing for the Federal Court of Appeal, Nadon J. decided that the test to be applied was that of what the "reasonable business person" would consider relevant when deciding what price to pay, which did not necessarily amount to the "fair market value" of comparable generic drugs. According to Nadon J., all the circumstances had to be taken into account, including incidental supply and licence agreements entered into by the parties.

This decision, upheld by the Supreme Court of Canada, is favourable for multinational enterprises who can more easily justify transferring profits to a lower-tax jurisdiction under the "reasonable business person" test.

Technology/Patents

Canadian Radio-television and Telecommunications Commission's Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 (Re), 2011 FCA 64 (Nadon J. dissenting), reversed by Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68 In this case, previously reported on the Canadian Appeals Monitor, the Supreme Court of Canada ultimately held that the Canadian Radio-television and Telecommunications Commission ("CRTC") lacked the jurisdiction to create a market-based "value for signal" regime. The proposed regime would have enabled private local...