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Former Supreme Court judge Marshall Rothstein says court not anti-business

Retired Supreme Court of Canada justice Marshall Rothstein photographed at his swearing-in ceremony in Ottawa on April 10, 2006.

CHRIS WATTIE/REUTERS

Retired Supreme Court of Canada justice Marshall Rothstein says it is wrong to characterize a run of recent Supreme Court decisions, ranging from enshrining the right to strike to affirming Ottawa's powers to crack down on tax avoidance, as anti-business.

Mr. Rothstein, whose new job with a Vancouver litigation boutique was announced Monday, said in an interview with The Globe that the top court acts on the evidence and the laws that come before it, not on a bias for or against business or anyone else.

"Sometimes it favours business, sometimes it favours consumers, sometimes it favours other players," Mr. Rothstein told The Globe. "But it really is based on the evidence and the law. I mean, it may be that legislatures and Parliament may have created more laws or laws that affect business more than they have in the past. So to the extent that cases involving that legislation come to the court, well then the court has to deal with it."

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Mr. Rothstein's new law firm, the 23-lawyer Vancouver-based Hunter Litigation Chambers, headed by well-known litigator John Hunter, announced the hire on Monday. Mr. Rothstein said he and his wife, a retired doctor, chose Vancouver to be closer to family. He said he chose a boutique firm to allow him to do more work as an arbitrator in commercial disputes without worrying about the conflicts posed by joining a big Bay Street firm with many clients.

The Winnipeg-born Mr. Rothstein, 74, was former Conservative prime minister Stephen Harper's first appointee to the top court in 2006, although the judge was drawn from a shortlist left by the previous Liberal government. He had served on the Federal Court of Appeal since 1999 after being appointed to the Federal Court in 1992. He was generally seen as one of the court's more conservative members, with expertise on intellectual property, tax law and commercial matters.

Among his most notable decisions was a 2011 unanimous ruling that upheld the powers of the Income Tax Act's general anti-avoidance rule, which allows the Canada Revenue Agency to deny benefits to a taxpayer for a transaction it deems was entered into solely for a tax loophole.

But on several decisions, he ended up in the minority, including July's 5-2 ruling that unionized workers have a constitutionally protected right to strike: "I simply view the situation differently than the majority. But you know what they say at the Supreme Court: The most important number is five. … And unfortunately I didn't have five."

The court has been at the centre of a series of political controversies that saw it appear to clash with Mr. Harper's government. Mr. Rothstein acknowledged there was tension between the top court and the previous government, which was repeatedly defeated at the Supreme Court and bruised by the botched appointment of nominee Marc Nadon. But Mr. Rothstein insisted much of it was overblown.

"I think a lot of it was played up by the press," he said. "I think a lot of it was more benign than maybe it appeared at times. … There were some areas where there was tension."

He said the most difficult cases included a recent decision to uphold hate-speech laws, this year's striking down of a ban on doctor-assisted suicide, and the 2013 ruling that axed Canada's prostitution laws.

Also difficult, he said, were cases in which he and some of his fellow justices had to rule against what some felt was a good piece of legislation for constitutional reasons. He listed the previous government's reference on Senate reform and its attempt to establish a national securities regulator as examples.

"We have to deal with the Constitution and we have to deal with the law," Mr. Rothstein said. "And we don't get to make it up ourselves on the basis of policy."

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