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Ontario judge can sit elsewhere: Winkler

|Written By David Gruber

In an unusual decision, the Superior Court has ruled that an Ontario judge may sit outside the province to hear a motion regarding a class action settlement agreement.

The decision is a ‘big step in the right direction,’ says Harvey Strosberg. Photo: Robin Kuniski

The lawsuit, certified by the courts in Ontario, British Columbia, and Quebec, relates to individuals infected with Hepatitis C after receiving tainted blood between January 1986 and July 1990. Although the Ontario attorney general objected to changing the location of the hearing, Ontario Chief Justice Warren Winkler, ruling in Parsons v. the Canadian Red Cross Society on May 24, held that the Ontario court’s “inherent jurisdiction to fully control its own process” permits it to convene outside the province.

In 1999, the governments of Canada, all 10 provinces, and the three territories agreed to be bound by the terms of a national settlement agreement. The settlement established a compensation fund of about $1.1 billion for a class of more than 13,000 members drawn from every province and territory, including approximately 5,200 Ontario residents.

Counsel for the plaintiff is hoping that all three supervising judges from the superior courts of Ontario, British Columbia, and Quebec will be able to sit together in the same physical location. Rulings from British Columbia and Quebec are still pending. All three jurisdictions will have to reach the same decision before all of the judges are able to sit together in one location.

The three superior court judges had proposed to hear the motion together in Edmonton, where they were already scheduled to travel for a meeting of the Canadian Judicial Council. But the court adjourned the motion when the attorney general threatened to challenge the court’s jurisdiction.

Leading class action lawyer Harvey Strosberg, who represented the plaintiff in Parsons, calls the decision “a big step in the right direction.”

“It’s easier. It’s less costly. Everybody will do it once,” he says.

In his ruling, Winkler rejected the attorney general’s proposal to link the hearings using video-conferencing technology. “The technology isn’t good enough,” says Strosberg. “The nuances of the submissions will not be as good as in person.”

He adds: “There’s a lot of interplay between the judges and the lawyers, and it’s easier to do it in person. And the judges have the opportunities to sit together, to interact with each other, then discuss it amongst each other.”

Winkler noted that while it’s within a court’s discretion to hold a hearing beyond its territorial borders, courts should use it sparingly and only “where the court has subject matter and personal jurisdiction over the proceeding.”

In this case holding a single hearing instead of three will “save expense and valuable resources,” Winkler wrote. It will also prevent inconsistent decisions, he suggested.

Strosberg notes that trying to get judges to make concurrent orders can be problematic. “It’s costly to do that and very time-consuming, expensive, and the risks are sometimes they don’t do it. They sometimes don’t agree.”

Litigating interprovincial class actions has been an ongoing problem in Canada. In 2011, the Canadian Bar Association approved part of a judicial protocol proposed by its national task force on class actions. It included standardizing settlement approval notices and co-ordinating the court approval process for multijurisdictional settlements.

Despite those developments, multiple courts may still have had to hear the same motion based on similar submissions prior to Winkler’s ruling. “It is not sensible to litigate the same issues over and over again,” says Strosberg.

Strosberg speculates that the future will bring further changes. “In time, I think there’ll be a rule that judges will get together and decide where is the preferable place to do a class action one time. Maybe it’ll be just like the U.S. rule. They have a multidistrict, and the judges will decide where it’s going.”

Winkler’s judgment emphasized the need for mobility across provincial lines, noting that the common law rules don’t correspond to “modern realities of increasingly complex litigation involving parties and subject matters that transcend provincial borders.”

If a joint hearing does take place, it won’t be the first time judges have crossed provincial borders in order to hear a class action. In Fontaine v. Canada (Attorney General), judges from Ontario, British Columbia, Quebec, Alberta, and Saskatchewan convened in Calgary to hear a motion on the Indian residential schools settlement. Judges from Manitoba and the territories joined in via telephone.

In his decision, Winkler stressed that court procedures should work in the service of victims.

“The procedural vehicle of the class action has permitted these victims to obtain redress for the harms they have suffered. The tragic events that gave rise to the actions transcended provincial borders and were national in scope.”

For Barry Glaspell, a partner at Borden Ladner Gervais LLP, the decision reinforces the notion about judicial economy that’s key to class actions.

“If a judge is in Mombasa, Kenya, on a beach holiday with her or his family and agrees to hear a motion, whether it’s an Ontario motion or whether it’s a pan-Canadian motion,” it’s absolutely fine, says Glaspell, a class actions litigator.

“A Canadian judge is perfectly capable of being judicial when she or he is out of province, out of country or — remember Commander [Chris] Hadfield — in outer space. It doesn’t matter where the judge is. So I would applaud the chief justice on this decision.”

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