Law Times

Page 12 September 2, 2013 Law Times • FOCUS Class actions against Crown involve unique challenges Politicization, procedural considerations among issues when suing governments BY Julius Melnitzer For Law Times T his month, Justice Carolyn Horkins of the Ontario Superior Court of Justice will begin hearing Dolmage v. Ontario, a $2-billion class action against the province of Ontario regarding its stewardship of the Huronia Regional Centre that provided a residential program for people with disabilities until its closure in March 2009. The case is but one of many class actions brought against governments whose actions have been fertile ground for plaintiffs. But as is the case in individual actions, suing the Crown has both its unique nuances and challenges. "The Crown does tend to litigate class actions a little differently than private defendants, partly because they don't for Another challenge is that the most part use outside class actions against the govcounsel," says Koskie Minsky ernment can become highly LLP's Kirk Baert, counsel for politicized. the class in Dolmage. "Private sector defendants "The Crown's level of reare more often prone to deal sistance at the certification with a class action on the is a little bit lower because basis of rational cost-benefit they take a more focused analyses," says Wright. approach by resisting only "In many cases, that's only those parts of the certificaa minor consideration in the tion test that are reasonably Crown's approach to a class resistible." action, which tends to focus But Michael Wright of on how the proceedings and Cavalluzzo Shilton McIntyre their resolution will reflect Cornish LLP in Toronto on the government and the says it can be difficult to reining political party." litigate class actions against To be sure, these considthe Crown because governerations are analogous to ments don't bring normal reputational risks for private considerations to bear in dealing with and resolving 'Somehow political risk always seems so much more defendants. "Somehow political risk such proceedings. acute,' says Michael Wright. always seems so much more "One of the main purposown behaviour," he says. acute," says Wright. es of the Class Proceedings "That's something they don't By way of example, Wright Act is behaviour modification, particularly like, so they push cites a proposed class action which means that governments brought by a class of parents are being asked to modify their back pretty hard," he says. SMART LITIGATION. NOW EVEN SMARTER. Michal Fairburn has joined Stockwoods after more than two decades with the Ministry of the Attorney General - Crown Law Office (Criminal) where she was General Counsel. She brings unparalleled appellate expertise and unique insight into complex criminal law and regulatory problems. Michal's addition strengthens our capacity to deliver top-tier advice to clients about their civil, regulatory or criminal law risks – and the complex relationship among all three. Smart Litigation. stockwoods.ca Untitled-4 1 www.lawtimesnews.com 13-08-27 9:04 AM who became sick or were injured during their pregnancy or parental leave and sought to extend their employment insurance benefit period by the duration of their illness. Prime Minister Stephen Harper has commented on the issue in the House of Commons several times, albeit without referencing the case. "In our view, the government is defending the case more on political than on rational economic or strict legal analysis grounds," says Wright, who's cocounsel on the case with his colleague Stephen Moreau. For his part, Moreau cites a number of additional special considerations in litigating class actions against the Crown. "The Crown operates through a wide range of actors and who is liable or responsible for these actors is always a difficult question," says Moreau. Procedural considerations also abound. For example, even naming the defendant properly once counsel has decided who it should be is an art in itself. "The rules in Superior Court and in Federal Court are different," says Moreau. "The Federal Court is a statutory court, so you have to go to legislation to find out exactly whom to name. If you don't get that right, some interesting issues can arise." Otherwise, the only remedy available against most private sector defendants is a lawsuit. But government processes often provide some kind of internal or legislative redress such as judicial review. "The upshot is that you frequently have to consider whether you must exhaust your other remedies and the extent, if any, that failing to do so or doing so precludes or stays an action," says Moreau. "That's always a very complicated issue, although recent decisions from the Supreme Court of Canada have clarified the law somewhat." Another important consideration is that governments have plenty of resources to litigate class actions brought against them. "The resources that the Crown has make bringing an action against government a major undertaking that requires you to try to anticipate any possible defence and think very carefully before you bring your claims," says Moreau. "The Crown, for example, is especially prone to move to strike, even before certification." If there's a silver lining in suing the Crown, it's in the Federal Court rules. "Once you get certified, the rules stipulate that from that point forward there will be no costs," says Moreau. "That makes the risk much lower." LT

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