Justice Rosalie Abella : Judging the new judge

By Mike Sporer
Burnaby Now
Aug 30, 2004

The nomination of Ontario Court of Appeal Justice Rosalie Abella to the Supreme Court of Canada is not a surprise.

Nor will the content of her future decisions be any surprise. For while there is no reason to believe that Justice Abella will bring anything less than her very best efforts to her judicial decisions, she is arguably the most left-wing jurist ever appointed to the Supreme Court of Canada.

In the mid-1980's she headed the Royal Commission on Equality in Employment. What became known as the Abella Royal Commission considered employment opportunities for women, the disabled, and visible minorities in Canada.

Her final report, though well intentioned, was fraught with methodological errors.

And while equality of opportunity and fairness are laudable goals, some wondered about the hiring practices of the Royal Commission itself. Thirty of the 35 commission employees were women. Of the 40 authors who were contracted by the commission to provide research papers and whose gender could be determined from the author's name, one critic noted that 27 of the authors were women and only 13 were men.

Now it is not fair to take bald statistics and conclude discriminatory, anti-male, hiring practices on the part of the Royal Commission. There were dozens of possibilities other than discrimination that may account for the statistical anomaly. For example, it may be that female academics were more interested in the subject matter of the commission and disproportionately sought to participate by providing papers. It may be discrimination, but it may not be.

But the Abella Royal Commission did take bald statistics and found discrimination on the part of employers in Canada, without rigorous analysis and careful consideration of the dozens of possibilities other than discrimination that might have accounted for the statistical anomalies that existed.

Some of Justice Abella's judicial decisions have given rise to comment. In 1997 she sat with two other appellate judges in a family law appeal in which the appellate court overturned a well-reasoned decision of the trial judge. The trial judge had dismissed the petition of a longtime girlfriend of a deceased married man. The girlfriend had sought compensation from the man's estate. The appellate court instead awarded the girlfriend $300,000.00 from the man's estate.

Ontario family law lawyer Karen Selick wrote: "Although virtually no evidence had been led to quantify the sacrifices [the girlfriend] claimed to have made in terms of time or dollars, the court plucked the figure of $300,000 out of the air and awarded it to Ms. Nowell."

Selick continued: "One can only hope that the Supreme Court of Canada overturns this decision..."

The Supreme Court of Canada did not overturn it because the case never made it to the Supreme Court of Canada. But Justice Rosalie Abella has.


Mike Sporer was born and raised in Burnaby. He now practises law in New Westminster with the firm of Sporer, Mah and Company.