Law Times

Law Times • March 23, 2015 Page 5 www.lawtimesnews.com Can an Ontario judge sit in Alberta? BY GLENN KAUTH Law Times anadian courts continue to strug- gle with how to deal with national class actions, as demonstrated in an Ontario Court of Appeal deci- sion on whether an Ontario judge could sit together with colleagues from other prov- inces to consider the Hepatitis C case. "There are serious difficulties with many national class actions that we have to deal with, and this is one example of it," says Barry Glaspell, a class actions lawyer at Borden Ladner Gervais LLP. "These are behemoth actions," says Shantona Chaudhury, a civil litigator at Pape Barristers PC who represented one of the plaintiffs in the case, Parsons v. Ontario. "They're massive and they're unwieldy and there's no legal framework for them." In Parsons, the appeal court was ruling on former Ontario chief justice Warren Winkler's decision in 2013 in which, sitting as a Superior Court judge, he held that the Ontario court's "inherent jurisdiction to fully control its own process" permitted it to convene outside the province. In this case, the proceedings were to take place in Edmonton to hear parallel motions arising under the pan-Canadian settlement agreement in the Hepatitis C case. Superior court judges from Brit- ish Columbia, Ontario, and Quebec are supervising the implementation and en- forcement of the settlement. Ontario's attorney general raised a num- ber of arguments in its appeal. It argued the Constitution, the common law, and legislation prevent judges from conducting hearings outside their home province. It also suggested the only way to get around the issue was by using a video link. On the constitutional issue, the province ar- gued the federal nature of Canada's court system envisions parallel and distinct court systems operating within their respective jurisdictions; the question of whether judges can hold hear- ings outside Ontario is a matter for the legislature and not the courts; and conducting a hearing elsewhere infringes the sovereignty of the other province. In deciding the issue, Justice Harry La- Forme found each judge would conduct a separate hearing to decide the matter in question. He noted the idea of a single loca- tion was to enhance co-operation between the three judges who would nevertheless is- sue orders from their home provinces. "In my view, such a process respects the distinct nature of the courts of each prov- ince while stimulating the cooperation re- quired to effectively administer the Settle- ment Agreement," wrote LaForme. LaForme also found Ontario had effec- tively conceded that out-of-province hear- ings aren't presumptively unconstitutional as it recognized that the legislature could authorize them by statute. Another key issue in the case was the open-courts principle as the Ontario government argued it precludes an Ontario judge from conduct- ing a hearing outside the province. On this issue, LaForme found the principle of open courts isn't absolute as it doesn't guarantee a right to be physically present in the courtroom. And, he noted, the Edmonton hearings would presum- ably have taken place in open court and the me- dia would still have been able to report on them. The decision in this case was in fact moot in light of legal develop- ments in British Columbia. While the su- pervising judges in British Columbia and Quebec agreed with the Ontario decision to convene in another province, the B.C. Court of Appeal allowed that province's appeal on the issue. In the end, the courts heard sepa- rate motions on the claims extension matter before them. They reached three conflicting decisions, according to LaForme. But the Ontario appeal court went ahead and de- cided the jurisdictional question as the par- ties argued the issue was likely to arise again. Glaspell notes the B.C. appeal ruling is subject to a leave application at the Su- preme Court of Canada. But adding to the confusion is the fact there were two partial dissents from LaFor- me's findings. Justice Russell Juriansz found Winkler had erred in finding a Superior Court judge in this case could sit outside Ontario without the necessity of a video link to a courtroom in Ontario. "I would conclude that the Ontario su- pervising judge while physically located outside the province has the jurisdiction and discretion to conduct the motion re- motely and concurrently with his or her judicial supervisory counterparts," wrote Juriansz, who emphasized the necessity of ensuring the open-courts principle but found technological alternatives could accommodate the requirement that the Ontario public be able to attend the hear- ing in an Ontario courtroom. Further partial dissent came from Jus- tice Peter Lauwers, who agreed with La- Forme in all respects except on the ques- tion of requiring a video link. "In my view, s. 135 of the Courts of Jus- tice Act requires a 'video pipe' between the room or rooms outside Ontario in which the hearing is held and a reasonably acces- sible Ontario courtroom," wrote Lauwers. For Glaspell, having a video link is key. "I actually think a video link is needed," he says, citing the concern for open courts. Chaudhury finds it surprising the On- tario attorney general has been objecting to the proposed hearing in Edmonton. "What's the big deal here?" she asks, not- ing the Supreme Court of Canada "liter- ally exhorted" the provinces to come up with a way to deal with national class ac- tions in Canada Post Corp. v. Lépine. "It's really important in a practical sense because these actions have to be managed," she says. "It's about efficiency for the plaintiffs and class counsel and, I would think, for everyone involved," she adds. LT NEWS Peter Downard's Commitment to You 1. Support for Equality and Diversity 2. Support for Better Access to Justice 3. Support for Balanced Regulation 4. Support for Mentoring and Skills Development www. p e te rd ow n a rd .c a • 41 6 - 8 6 5 - 4 3 69 Fasken Martineau, 333 Bay Street, Suite 2400, Toronto, ON M5H 2T6 Among Peter's supporters are the following distinguished lawyers: Geoff Adair John Campion Brian Gover Bob Harrison Doug Hunt Don Jack Jeff Leon David Lepofsky Jennifer McAleer Will McDowell Eugene Meehan Willy Menninga Mayo Moran Susan Opler Allan Rock Mark Sandler Paul Schabas Peter Wardle "Peter will be an excellent bencher - he will bring to the issues an open mind and will consider all points of view before making his decision." - Derry Millar Peter Downard @Downard4Bencher Untitled-3 1 2015-03-17 10:32 AM C 'What's the big deal here?' asks Shantona Chaudhury, who notes the Supreme Court has 'literally exhorted' the provinces to find a way to deal with national class actions.

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