Law Times

Page 4 March 30, 2015 • Law Times www.lawtimesnews.com "So just through my own dining room con- versations, I hear a variety of perspectives," adds Brown, whose interest in politics began when he followed then-federal Progressive Conservative leader Jean Charest around during the 1995 refer- endum campaign on Quebec sovereignty. Like most lawyers in the province, both Elliott and Brown are quick to emphasize issues of access to justice. In particular, they both note their con- cern about delays in the justice system. "It's a fundamentally important issue," says El- liott. "Our whole system rests upon the rule of law and our rule of law needs to be exercised in a timely manner. Even at a time when we have a very difficult economy, we need to look at innova- tive ways to advance justice in a timely manner." To Brown, justice issues need to attract more of what he calls "political profile." "I have to say that one of the reasons why ac- cess to justice hasn't really been at the forefront of political discussions is I think it's fair to say it has a low political profile," he says. "I think we'd be well served by doing more con- sultation, by listening to stakeholders and those who are struggling with the system because I think sometimes those who are facing the biggest challenges in the legal system are those who don't have a voice within the political system." When it comes to access to justice, Elliott says she's talking about the physical aspects as well. "We need to use technology in the administra- tion of justice to make courts more accessible . . . in terms of physical accessibility for people with sight and hearing difficulties," says Elliott, who along with her late husband, former finance min- ister Jim Flaherty, co-founded the Abilities Centre in Whitby, Ont. "It's really, really important because we want to include a truly inclusive system where everyone is able to state their case and be treated as everyone wants to be treated," she adds. Elliott says many people come to her with is- sues related to the law. People will ask for help dealing with the Family Responsibility Office, for example, when its computer system can't translate a judge's order, causing problems with their pay- ments. "I think there needs to be some adjust- ments there so that people are receiving payment on a timely basis," she says. Brown is more reluctant to outline the specific changes in the justice system he'll push for if he becomes Conservative leader following the May 9 vote. "There's a real frustration in our party mem- bership that we have created policy top down where leaders have announced what their policy positions are going to be prior to actually talking to stakeholders, talking to the party membership," he says. "I think that's how we ended up in the debacle of the faith-based funding disaster and [former leader Tim Hudak's] 100,000 jobs cut disaster that led to electoral mistakes," he adds. "My commitment is we're going to, in a very real way, engage stakeholders and the member- ship before we come out with policy announce- ments." Norton Rose Fulbright Canada LLP partner Walied Soliman says Brown, a friend of his for many years, will make the party "more palatable to voters." "He's done an extraordinary job driving a number of important issues to the forefront in this race, including increasing the diversity of our party and changing how our party sort of does business. So I think a number of us are very proud of his leadership style, the things that he's trying to do to change the party and make it a more palat- able choice for voters in 2018," says Soliman, co- chairman of the Canadian special situations team at Norton Rose Fulbright. The Conservative party needs to do a lot of reaching out, says another lawyer and Law Society of Upper Canada Bencher Julian Porter. But in his view, Elliott would be better at doing that. Porter says he and three other benchers went to meet with Elliott at the Abilities Centre a few days after her husband's funeral last year. She spent two hours showing him and his colleagues around the centre on a Tuesday. Two others who were with him that day have children with disabilities, says Porter, who notes he was "vastly touched" by Elliott's sincerity in hearing about their children and their circum- stances. "She just took so much time inquiring of them and what the kids' limitations were and what things she had there [at the centre] that would ac- tually match the kids' limitations. I just thought it represented an extraordinary depth of character," he says. "I think [Elliott] represents an ability her party must reintroduce and that's an ability to reach out," he adds. "I think she's very good at that." Election Ontario's disclosure information for political contributions shows some other lawyers agree. Elliott has received donations of $5,000 from each of Impact Law LLP, Kelly Greenway Bruce, and Sandra Zisckind Law PC. The Ontario Paralegal Association has donat- ed the same amount to her campaign while law- yers like her former law partner Todd McCarthy have made smaller contributions. Disclosures for Brown's campaign show fewer donations from the legal profession, but they in- clude Edward Goldentuler PC, which contributed $1,000, and Mann Law Barristers and Solicitors PC, which pitched in $200. Brown and Elliott are running for the leader- ship at a time when the membership of the legisla- ture includes fewer lawyers than ever before. But while there are two lawyers in the Conservative race, Elliott says what sets her apart from Brown is her years of experience practising law. "I've had 25 years of actual practising legal ex- perience. I think that makes a difference in the way that you approach things in terms of under- standing the economy," she says. "Having been in the business world running a law practice with law partners and knowing that you have to make payroll and make decisions af- fecting your business, I think that's really impor- tant for both a leader of a political party to know about as well as a potential premier." Besides Elliott and Brown, the leadership race also includes MPP Monte McNaughton, a busi- nessman from Newbury, Ont. The party will hold its convention at the Toronto Congress Centre. LT NEWS leave hurdle unscathed. "In every case I'm aware of, the judge has looked at the case and cut cases down to make sure the core is getting through," he says, calling the chamber's statement an at- tempt to bring "American-style rhetoric" to Canadian litigation. But Warren Everson, senior vice president of policy at the Ca- nadian Chamber of Commerce, says the United States offers an example of what could happen if the legal system fails to control "excessive" class actions. "This is an area where the presence of the Americans is in- teresting. They have a keen interest in this and their message to us over the last couple of years has been: 'In America, we have a very, very sweeping problem with excessive class actions and Canada should be careful not to follow this,'" says Everson. Everson also says lawyers have told the chamber it's becoming easier to obtain class certification and "it's very much true that if you get your class certified, you're going to get some sort of settlement from the defence." The chamber says the issue is even worse in Quebec, which it calls "the most popular location for initiating class action." According to Montreal lawyer Eric Préfontaine, co-chairman of the class actions specialty group at Osler Hoskin & Harcourt LLP, Quebec courts had begun applying more scrutiny in certi- fication motions between 2007 and 2011. But he notes subse- quent appeal decisions largely overturned the courts' denials of certification. "When you look at recent decisions by the Supreme Court, we see the trend is really that the interpretation of the provi- sions dealing with motions for authorization and class actions in general are to be interpreted basically very broadly," says Pré- fontaine. "The Supreme Court says the authorization is basically a fil- tering mechanism. But the filter, let's [just] say the holes are too broad. So when you look at that, you know, I can certainly un- derstand the defendants who are a little bit more concerned," he adds. Préfontaine suggests, however, that there's a misconception on the part of defendants that certification of a class action will result in a favourable finding on the merits for the plaintiffs. "Whenever there's an authorization that's granted, it becomes a file like any other file. What we see, however, is that the defen- dants would be more eager to settle because there's already a de- cision granting authorization and they believe that their chances of success are not as good because of that," says Préfontaine, not- ing that's not the case, at least in principle. In reality, when defendants believe they have a good position and decide to fight a class action, the courts don't necessarily fa- vour the plaintiffs, says Préfontaine, adding part of the burden of educating clients about the issue lies with the class action de- fence bar. Another lawyer, Sharon Strosberg of Sutts Strosberg LLP, re- jects the idea that certification results in immediate settlement. "That's nowhere close to reality," she says. "We've had a number of class actions that were certified on consent, but they haven't automatically settled. They're all ongo- ing, so I reject that," she adds, noting the purpose of certification isn't to decide a case on the merits but to ensure it meets the pro- cedural requirements. If corporations have decided to settle a class action, it's be- cause they've determined it's in their own best interest, accord- ing to Bach. While access to justice is important, Everson says any lawyer or judge knows there are many frivolous and nuisance claims that come before the courts. The courts should be "careful not to certify excessively easily and ensure that a proper class exists before they certify," he notes. But Bach says there are proper barriers in place already to dis- courage those types of claims. "In Ontario, we have an adverse cost regime. People who fail the class certification stage, who fail at trial, are made to pay costs of the defendants, which has been highlighted by various law commissions as the reason why we don't have non-meritorious class actions in Canada," he says. Yet according to the chamber's analysis, the existence of third- party litigation funding has weakened the effect of an adverse cost system. "The recent decisions approving particular [third-party fund- ing] agreements, or approving of [such funding] in general, may diminish the salutary effect that 'loser pays' cost regimes in some Canadian provinces have had in deterring non-meritorious law- suits, as plaintiffs and their attorneys turn to well-financed . . . companies willing to invest in litigation," the analysis suggested. Bach says the third-party litigation funding cases he's aware of are securities-related claims. And those types of claims, he notes, haven't risen in number. LT Continued from page 1 Quebec 'most popular' place for class actions Brown lauded for leadership style, elliott for ability to reach out Continued from page 1 Patrick Brown comes from a family of nine lawyers.

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