Report of the Independent Committee for the Selection of the Most Relevant Pre-1970 Decisions Rendered by the Supreme Court of Canada

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Dear Ms. Carbonneau:

Re: Report of the Independent Committee for the Selection of the Most Relevant Pre-1970 Decisions Rendered by the Supreme Court of Canada

We are pleased to share with you the report of the Independent Committee for the Selection of the Most Relevant Pre-1970 Decisions Rendered by the Supreme Court of Canada (the Committee). This report has two sections: the first describes the Committee’s mandate, and the second lists twenty-four significant Supreme Court decisions that should, in the Committee’s opinion, be given priority for translation.

1. Description of the Committee’s Mandate

The Supreme Court of Canada (SCC) can be proud of its reputation as one of the world’s most transparent and accessible apex courts. Bilingualism and bijuralism are at the very core of its identity. Canadians may present their arguments to the SCC in the official language of their choice. Since the Official Languages Act, R.S.C., 1985, c. 31 (4th Supp.), came into effect in 1970, the SCC has rendered official versions of its decisions simultaneously in both official languages.

However, between 1877 and 1970, the SCC rendered approximately 6,000 decisions that were not translated. Some were in French, some were in English, and others were partly in French and partly in English. The fact that these decisions have not been translated has been the subject of public debate. On the occasion of the SCC’s 150th anniversary, the Office of the Registrar decided to translate some of the SCC’s most jurisprudentially relevant pre-1970 decisions, which will become available in both French and English on the SCC’s website.

For this purpose, the SCC established an independent committee of legal experts to develop criteria and select decisions to be translated in the near term. The Committee consists of the following seven members:

The Committee is chaired jointly by the Honourable Marshall Rothstein and the Honourable Clément Gascon. Teresa Donnelly serves as secretary of the Committee.

The Committee’s mandate has three phases:

The Committee commenced meeting on January 23, 2025, and subsequently met on January 30, March 6 and 20, April 14, May 5 and 15, and June 2. Each meeting lasted approximately one hour, and each member undertook to keep the deliberations confidential. The outcome of the Committee’s meetings is summarized in the next section.

2. List of Most Jurisprudentially Relevant Pre-1970 Decisions

As mentioned above, the SCC rendered nearly 6,000 unilingual decisions before 1970. The terms of reference directed the Committee to first establish criteria to identify the decisions that are “the most jurisprudentially relevant to the development of modern law” and then to select about twenty decisions “among all areas of law that meet these criteria”. The overarching goal was to identify which cases should be given priority for translation.

This was a challenging task. The Committee had to select the top 0.33% of pre-1970 SCC decisions in a short period of time while working on this project on a part-time basis. In this context, the Committee had to find an efficient, rigorous, and objective way to identify the most relevant decisions. The first step was therefore to agree on a quantitative approach that would enable the Committee to narrow the number of cases to be examined before proceeding to a qualitative assessment.

From the outset, the Committee recognized that SCC decisions are read, analyzed, applied, and quoted by different audiences for different purposes. The key audiences can be broadly organized into six groups: SCC judges; appellate and lower-court judges; administrative decision-makers; legal professionals; law professors and students; and other members of the public, including self-represented litigants. As a starting point, the Committee decided to inquire into which pre-1970 SCC decisions are most relevant to each group based on quantitative citation data. The Committee obtained the following six tables from various sources:

Tables 1, 2, and 3, were provided by CanLII. Tables 1 and 2 were compiled on March 11, 2025, and Table 3 was compiled on April 1, 2025. The three tables identify the top 100 most-cited pre-1970 cases of all time by the SCC, appellate and lower courts, and administrative decision-makers, respectively. ^{Footnote 1} They provide valuable data on the precedential value of older SCC decisions.

Table 4 was provided by Professor Paul Warchuk of the University of New Brunswick Faculty of Law. It is based on data he collected for an article entitled “Do Pre-1970 Precedents Still Matter? An Empirical Analysis of Legal Submissions and Court Decisions”, which has been accepted for publication in volume 70 of the McGill Law Journal. ^{Footnote 2} Table 4 lists the top 100 pre-1970 cases cited by lawyers in legal facta submitted to the SCC between April 2009 and September 2024. This list provides valuable information for determining which decisions are relevant to contemporary legal debates before the SCC.

Table 5 is based on a survey of law professors conducted by Dean Marie-Ève Sylvestre and Vice-Dean Yan Campagnolo of the University of Ottawa Faculty of Law. The survey was sent to professors at the University of Ottawa (Civil Law Section and Common Law Section) and the University of Moncton, and all members of the Association des professeurs-es de droit du Québec (i.e., law professors at the following institutions: Laval University, the University of Sherbrooke, the University of Montreal, the University of Quebec at Montreal, the University of Quebec in Outaouais, and McGill University).

The survey focused only on these eight law schools because of (1) time constraints and (2) the fact that most of the pre-1970 decisions were rendered in English and need to be translated into French. Hence, it was of great interest for the Committee to know which cases are most relevant to law faculties where courses are taught in French. The survey was sent to law professors and conducted online between March 20 and 28, 2025. The professors were asked to name up to five pre-1970 decisions rendered by the SCC that they use in their teaching and consider important in their research field. A total of twenty-five individual responses were collected and analyzed. ^{Footnote 3} These responses spanned various areas of expertise, from torts and extracontractual liability to contract, tax, family, constitutional, and criminal law. The survey yielded a preliminary list of 159 cases. The Committee then decided to eliminate the cases that had been flagged only once, given their low level of support. Twenty-three cases remained; these cases were included in Table 5. Despite the survey’s limited sample, this list provides insight into some significant decisions that remain relevant in the context of legal education and are thus likely to be read by law students.

Table 6 was provided by CanLII/Lexum. It contains a list of the top 100 pre-1970 cases consulted by members of the public on the SCC website between October 2012 and December 31, 2024 (note, however, that the SCC removed its older decisions from its website on November 8, 2024). This list helped the Committee ascertain which cases have been popular online, which is a proxy for relevance to members of the public.

Notably, the Committee did not gather data on citations of older SCC decisions in law reviews and books. While this information would have been useful, no comprehensive database offers reliable results in this regard. The CanLII database, for example, contains only some articles published by law reviews, but no books, which are typically subject to copyright. In addition, CanLII informed the Committee that it would be difficult to compile the information for technical reasons. Hence, the Committee was unable to properly investigate law reviews and books.

The results from the six tables described above were incorporated into one “consolidated” list of cases. ^{Footnote 4} Because many cases appeared in more than one table, the consolidated list contains a total of 373 cases, representing 6.22% of all pre-1970 cases. The Committee then cross-referenced the results obtained from the six tables to identify the cases that were listed in more than one table. The assumption underlying this approach is that a case listed in multiple tables is presumably more relevant, important, or influential than a case found in one table only. This approach enabled the Committee to create a list of fourteen core cases that appeared in four, five, or six tables. These fourteen cases were divided into the following three groups, in order of importance (a brief summary of the significance of each case is provided under the style of cause):

These cases were reviewed to confirm that they had not been overruled by either the Judicial Committee of the Privy Council or the SCC and that they remain relevant to current legal debates. The Committee found no reason to exclude any of these fourteen cases and accordingly recommends that they be translated first (starting with the cases in Group 1, followed by the cases in Group 2, and then the cases in Group 3). The Committee understands that the SCC has already begun work to translate Roncarelli v. Duplessis, a landmark decision that is highly ranked in all six tables.

The Committee then determined which cases should be considered for inclusion in a fourth group. A decision was made to include the top five cases from Table 1 (most-cited decisions by the SCC), Table 2 (most-cited decisions by the appellate and lower courts), and Table 4 (most-cited decisions by lawyers) that were not already listed in groups 1 to 3, on the basis that these decisions have high precedential value (according to judges) or are relevant to current legal debates (according to lawyers). The assumption underlying the Committee’s approach in this regard is that a high citation count is a good indicator of a case’s importance. This approach enabled the Committee to identify seven additional cases for the list:

Lastly, the Committee requested a final table from CanLII to ensure that it did not miss any cases that are particularly relevant to current legal debates. On April 30, 2025, the Committee received a final table showing the cases listed in Table 1 (most-cited pre-1970 decisions by the SCC) and Table 2 (most-cited decisions by the appellate and lower courts) that have been cited the most since 2010 (the results were compiled on the same date). Following a qualitative assessment of these cases, the Committee decided to place three cases in a fifth group based on their high relevance to current debates:

Based on the foregoing, the Committee recommends that the SCC give priority to the twenty-four cases listed above (and reproduced in the Appendix) for translation. From a statistical perspective, in terms of language, jurisdiction, and subject matter, these cases can be categorized as follows: