Law Times

Page 4 January 7, 2019 • Law Times www.lawtimesnews.com Court of Appeal admonishes judge Some limits on case management powers in class actions BY SHANNON KARI For Law Times T he Ontario Court of Appeal has admon- ished a senior Superior Court judge and found that he failed to provide proce- dural fairness or natural justice to the chief adjudicator responsi- ble for administering the Indian Residential Schools Settlement Agreement. e three-judge panel, in its decision issued on Dec. 13, also set aside two directions issued by Justice Paul Perell and or- dered that if any of the parties is seeking a request for direction, that it be heard before another judge. "Of the many principles un- derlying the Canadian judicial system, generally those who will be subject to an order of the court are to be given notice of the legal proceeding and af- forded the opportunity to ad- duce evidence and make sub- missions," stated Justices Sarah Pepall, William Hourigan and Gary Trotter, in the ruling issued by the court. e unusual proceeding stemmed from two decisions issued by Perell where he made findings and issued directions against the chief adjudicator, Dan Shapiro, without notice or any right to participate in the process. Joseph Arvay, co-counsel for the chief adjudicator, says the Court of Appeal ruling is a re- minder that rules of procedural fairness must be followed by everyone. "e decision fully vindicates not just the personal reputation of the chief adjudicator but also his office," says Arvay, a partner at Arvay Finlay LLP in Van- couver. "Perhaps even more impor- tantly, the decision affirms that the rule of law applies not only to the executive and administra- tive branches of government, but to the judiciary itself." e Indian Residential Schools Settlement Agreement is a "unique settlement which remains under the supervision of the courts," notes Margaret Waddell, a class action lawyer at Waddell Phillips in Toronto. "What the Court of Appeal is saying is that before a judge is- sues a direction in a supervisory function, he has to give the chief adjudicator a chance to respond," says Waddell, who has acted for a number of residential school sur- vivors in the claims process. "You can't make findings against a court appointed of- ficial without hearing from them," she adds. Perell is the eastern admin- istrative judge — one of a small number of members of the ju- diciary that are responsible for overseeing the agreement that the federal government reached in 2007 with Indigenous groups and religious organizations over past abuse at residential schools. More than $3 billion in pay- ments have been made to claim- ants in a process that is expected to wind up in 2021 and is what Perell referred to as the country's largest and most complex class action settlement. e Superior Court judge has clashed with Shapiro over the jurisdiction and actions of the chief adjudicator in the claims assessment process. In a decision issued by Per- ell on Sept. 5, he concluded that Shapiro had acted improperly as a "partisan" in the claims process. "e Ontario Court of Appeal has observed that the approval orders and the implementation orders 'were designed to give ef- fect to the court's ultimate con- trol of the IAP, through the Chief Adjudicator,' who is in turn 'ac- countable to the court.' For pres- ent purposes, this last point bears emphasis. e chief adjudicator is an instrument of the IRSSA, not a stakeholder, not a party, not an advocate for claimants or for itself," wrote Perell. Neither the adjudicator nor the federal government were permitted to make submissions in advance of the ruling being issued. In his decision, Perell also stated that Shapiro's office should not have participated in appeals of decisions of supervis- ing judges. "e Chief Adjudicator's par- tisan involvement has caused him to invite appellate courts to disagree with the very courts that are tasked with supervising him and to which he reports. at is unacceptable," Perell said. "It bears noting that in each of these proceedings, parties to both sides in the disputes are making submissions. e Chief Adjudicator's participa- tion, akin to an intervention by an affected party, was not and is not required for a fully informed adjudication. It is unnecessary," Perell added. e Superior Court judge or- dered Shapiro to "immediately terminate involvement" in two pending appeals before the B.C. Court of Appeal and one before the Supreme Court of Canada. "It is no answer for the Chief Adjudicator to point out that the Supreme Court of Canada and the British Columbia Court of Appeal have afforded him an audience. His standing in the pending appeals, and in particu- lar his standing to make partisan arguments, has not been adjudi- cated and he obviously did not advise the Supreme Court of his prescribed and limited role un- der the IRSSA," Perell explained. e chief adjudicator ob- tained a stay of the decision pending an appeal. e chief adjudicator also participated in the Supreme Court appeal in J.W. v. Canada which is still on reserve and has to do with the power of supervis- ing courts to review compensa- tion decisions by the adjudicator. Aer the stay of the first di- rection was obtained, another decision was issued by Perell on Sept. 27, again without notice. Perell stated that he was rescind- ing his original direction and was appointing a lawyer as an amicus curiae to bring a "re- quest for direction" that would be heard by two of the other su- pervising judges involved in the claims process. is ruling also outlined what issues would be adjudicated about the actions of the chief ad- ministrator and what materials would be submitted to the two presiding judges at this hearing. e chief adjudicator ob- tained a stay of this direction as well. Justice Robert Sharpe or- dered the appeals of both direc- tions to be heard together by the Court of Appeal. Arvay and co-counsel An- drew Faith, a partner at Polley Faith LLP in Toronto, argued that the findings by Perell against the chief adjudicator were akin to contempt of court and re- quired procedural protections before they were made. e fed- eral government responded at the Nov. 23 hearing at the Court of Appeal that because the ad- judicator was court appointed there is no duty of procedural fairness required to be provided by the supervising courts. is submission was rejected by the Court of Appeal. "It is precisely because the eastern administrative judge was exercising his judicial func- tions that he owed the appellant an elevated duty of procedural fairness and natural justice," the court wrote. It also found that Perell's decision to strike his first direction aer a stay of it was granted was improper. "Once the first direction was issued, the eastern administra- tive judge's jurisdiction over the matter was exhausted. While the first direction was under appeal, he had no authority to rescind and replace it with the second di- rection. e principle of functus officio addresses the very harm at issue in these appeals, namely that a lower court must not in- terfere with the jurisdiction of an appellate court," the Court of Appeal panel explained. Scott Robinson, a class action lawyer at McCarthy Tétrault LLP in Toronto, says Perell is very experienced in presiding over this type of litigation. "He is one of the most influ- ential Superior Court judges in developing class action juris- prudence," says Robinson. At the same time, while Robinson notes that a judge's case manage- ment powers in the class action field can be very broad, there are some limits. "As the Court of Appeal states, there are basic principles, such as the right to be heard, es- pecially if there is a finding that could impact your professional reputation," Robinson says. LT NEWS JUDICIAL VACANCY ONTARIO COURT OF JUSTICE OWEN SOUND The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for a judicial position in Owen Sound. This appointment involves presiding over criminal and family law matters (approximately 50% criminal and 50% family) and also involves travel within the regional boundaries as assigned by the Regional Senior Justice and/or the Chief Justice. The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: www.ontariocourts.ca/ocj/jaac/ All applications, either sent by courier, mail or hand delivery, must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government and Consumer Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, January 25, 2019. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. The Judiciary of the Ontario Court of Justice should reflect the diversity of the population it serves. Applications from members of equality-seeking groups are encouraged. Untitled-1 1 2019-01-02 10:11 AM As the Court of Appeal states, there are basic principles, such as the right to be heard, especially if there is a finding that could impact your professional reputation. Scott Robinson Joseph Arvay says a recent Court of Appeal ruling is a reminder that rules of procedural fairness must be followed by everyone.

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