Thread by @GenevaTradeLaw

An ex parte application to the Ontario Superior Court of Justice reminded me of this note about investigations. It also has other interesting points on precedents - well, interesting for me and other law geeks, and potentially of interest to WTO nerds as well.

Ex parte? 1/

https://twitter.com/GenevaTradeLaw/status/1594240897428107265

It means going to court asking for something without the other side present. For example, in the middle of a criminal investigation.

In this instance, the Court issued a sealing order for all relevant materials. And that the motion at issue could proceed without notice. 2/

Now both of these are extraordinary remedies in most instances, but not when there is a live criminal investigation going on. And it makes sense - that they are both extraordinary and possible. This is elementary; you should be sceptical of politicians who assert otherwise. 3/

The production order asked for was in respect of texts exchanged in Canada on a platform based in the United States. Does the location of the storage matter? No; gotta be practical, says the Court.

There's even a morsel for international law and extraterritorial nerds. 4/

Canadian federalism is a glorious thing. There is a judgement by a BC court of appeal that a judge in Newfoundland disagrees with, which then the Alberta court of appeal expressly rejects.

Did an Ontario judge err when he followed Newfoundland rather than Alberta or BC? 5/

Well, now, that's the wrong question. Or, rather, it is too simplified. The Superior Court looks at the reasons, and finds four errors. The first is one of principle, and deceptively simple as it is, goes to the heart of *rule of law* itself, especially in international law. 6/

It is this: concerns about enforceability do not deprive the court of jurisdiction.

Zoom out, and the principle is applicable to international law ("Who enforces it? It can't be enforced, so it's not law.") and *law itself*. (The second excerpt is from my Bern lectures.) 7/

The Court then turns to the use of precedent of a coordinate court - of particular interest to trade/#WTO #WTODSReform nerds, and of particular interest now because the @wto DSM is almost entirely coordinate/horizontal these days - and for some time to come. 8/

It's the first time I see the term "per incuriam". Am I going to use it in the future? You betcha.

The Court could have stopped at "The Supreme Court says so; there's an end on't." It didn't. The principle is too important for the proper functioning of the entire system. 9/

Let me unpack this a little bit, because it's a remarkable paragraph.

1. The reference to "minority reasons" piqued my interest. So I looked up the case. Concurring, not dissenting, but wow, what an opening.

And it gets better: rule on precedent applies to the SCC itself. /10

The rule is not rigid, and it gets relaxed as one moves up the chain of the judiciary. This reflects the institutional role of apex courts.

Anyone who has ever appeared before the Appellate Body will recognise this passage. And that, in a nutshell, was the problem. 11/

The Court then looks in depth at the rationale for stare decisis.

And, again, this highlights the bind that the AB found itself in: the rationale is the same for both domestic and international judicial decision-making. But the AB lacked the legitimacy of domestic courts. 12/

I can't help but think that this was a dig at the US Supreme Court. 13/

2. Back to the production order business and the Court's remarkable paragraph: the reference to "inefficient use of court resources." The Court refers to re-litigation, but the double issues of "efficient use" and "court resources" should be central in any reform context. 14/

In the WTO, the last Ministerial Conference decided to enhance "access" to the dispute settlement framework for developing and least developed countries.

Does it - should it - mean more litigation? No. It requires rethinking the system altogether. 15/

genevatradelaw.com/index.php/conc…

Coming back to our sheep*, the Court is not impressed by the JP's decision to follow the precedent he preferred rather than the one he was required to follow. This is as it should be. 16/

*Makes more sense in French

OK - now I'm going to get even more nerdy here.

One of the final issues the Court addressed was whether the writs of certiorari and mandamus were available for *justices of the peace*. In this single paragraph you see federalism and the common law working perfectly. 17/

And no, I did not privileged access to a sealed order. This is how our system works: seal where necessary, publish and redact where possible, and publish completely where appropriate. /fin