The appeal was heard on December 6, 2005. The Court has just ordered that there will be a rehearing by means of review of the transcript and videotape. This was the last case on which Justice Major sat before his retirement and apparently he will not participate in the final judgment. I understand that the Court has indicated that, in light of the retirement of Justice Major, Justice Rothstein, who was appointed after the hearing, will participate in the rehearing.
While once can only speculate, this could mean that there is a serious split or splits going on behind the scenes. Normally, a retiring judge will finish up work on the cases he or she has heard and has six months to do so. If he cannot do so for any reason, the Court can issue a decision with less than the full 9 justices participating and would so note. It could then be an 8-0, 7-1, 5-3, 6-2 decision, etc. Perhaps things are so close in this instance that such a result is not possible and that the Court could be split 4-4 on key points.
I haven't checked whether we have many or any 4-4 decisions in our Supreme Court but they do happen in the USA occasionally. As I recall, this results in the affirmation of the decision below.
In any event, here’s the order:
HEATHER ROBERTSON V. THOMSON CORPORATION (Ont.) (30644)HPK
THE CHIEF JUSTICE:
A re-hearing is ordered.
On the consent of the parties, the Court will rehear the appeal by reviewing the transcript and viewing the videotape of the hearing held on December 6, 2005. Any questions arising during the re-hearing shall be addressed to counsel for the parties, in writing. Counsel shall be given the opportunity to answer and reply in writing in accordance with dates as directed by the Registrar.
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