Law Times

LaW TIMeS • aPRIL 20, 2015 Page 13 www.lawtimesnews.com National class actions Courts grapple with question of allowing judges to sit elsewhere BY JULIUS MELNITZER For Law Times he challenge of rec- onciling traditional limits on the jurisdic- tion of Superior Court judges with the fair and efficient management of national class actions continues to pose a di- lemma for Canadian courts. "This traces back to the old English rule that English judges couldn't sit outside England be- cause of concerns about access to open courts and sovereignty con- siderations," says Chris Naudie of Osler Hoskin & Harcourt LLP in Toronto. "But how do you apply that in a federal state where a national class action involving a mass wrong has to be resolved?" The most recent manifesta- tion of the issue arose in the On- tario Court of Appeal's March 2015 decision in Parsons v. On- tario. A divided bench ruled On- tario judges couldn't sit outside of the province in the absence of a video link to an Ontario court- room. "The decision will likely create an additional obstacle to efforts to improve the co-ordina- tion and efficient management of multijurisdictional class proceed- ings," says Naudie. Parsons followed a complex settlement of the national class action related to the hepatitis C tainted-blood scandal. "The settlement involved $1.1 billion, thousands of class mem- bers, and required an efficient method of administration," says Naudie. The sponsors of the settlement decided judges from the prov- inces involved should all attend in Edmonton to supervise mo- tions stemming from the agree- ment. Certain parties, includ- ing the attorneys general from several provinces, objected to the process on the basis that judges couldn't sit outside of their home jurisdiction. Related litigation then ensued in Ontario, British Columbia, and Quebec. In Ontario, Parsons pro- duced three separate sets of lengthy reasons. "The court was unanimous in its conclusion that there was no constitutional or statutory bar requiring a judge to be physically present in Ontario, but the ma- jority found that the open-court principle required a video pipe- line to an open Ontario court- room," says Naudie. "Justice Harry LaForme, how- ever, did not feel a video link was required because there were practical challenges with it and resorting to it amounted to a form of legal fiction." About two months earlier, in Endean v. British Columbia, the British Columbia Court of Appeal overruled the decision of then- B.C. Supreme Court chief justice Robert Bauman relating to the jurisdictional issue. Bauman had concluded that nothing prevented a B.C. judge from sitting outside of the province. The Court of Appeal, however, stipulated that B.C. judges who are outside of the province could conduct a hearing by phone, media or otherwise as long as the proceedings took place in British Columbia. Earlier, in 2013, the Quebec Superior Court dealt with the same settlement. In a decision that wasn't appealed, the Que- bec court, like Bauman, found there were no constitutional or statutory principles preventing a Quebec judge from sitting out- side of the province. "All three courts appear to be gravitating to a rough consensus that judges can sit outside their home province so long as there is a video link with some judges questioning whether even that is necessary," says Naudie. "Argu- ably, these decisions endorse the Canadian Bar Association proto- col governing multijurisdictional class proceedings." LT motions pending, reserved or decided without reasons and per- haps by endorsement. But what may be more reveal- ing are the statistics related to the outcomes of summary judgment motions. According to the statis- tics, Ontario judges granted 55 per cent of summary judgment motions, partially allowed nine per cent, and dismissed 36 per cent in the year preceding Hryn- iak. In the 12 months thereafter, judges granted 54 per cent, par- tially allowed 10 per cent, and dismissed 36 per cent. These numbers lend them- selves to at least three interpreta- tions: the first is that the Supreme Court's endorsement of the pro- cedure and the test it enunciated for its application, which gave judges very broad scope in inter- preting the Rules of Civil Proce- dure, has done virtually nothing in promoting successful out- comes on such motions; the sec- ond is that the Hryniak test, when put into practice, is no broader than the previous standard for granting summary judgment; the third arises because the statistics don't measure the breadth of the issues raised on the various mo- tions. It suggests that because the broader test has encouraged law- yers to seek summary judgment in a wider range of cases, the ex- panded scope of the applications may be limiting their success. But whatever the correct inter- pretation and working on the as- sumption that class actions are for the most part more complex than individual cases, it appears law- yers may be reluctant to embrace the summary judgment proce- dure in collective lawsuits more wholeheartedly than they have in traditional litigation. LT ARE YOU… Considering retirement? Or semi-retirement? Or do you still love working but wish you had 30% fewer files? YOU SHOULD CALL US We should be talking about: x How we can handle your referral work x Flexible work-sharing arrangements to allow you to ease your way to retirement x Better work/life balance in a manner which will ensure that your clients' needs are looked after. We have successfully worked with personal injury lawyers, in the past, to facilitate a smooth transition into retirement. We are COMMITTED to bringing our litigation services TO your CLIENTS wherever they may be. TORONTO 1400-220 Bay Street 416-360-1194 OAKVILLE 4–1464 Cornwall Road 905-337-9568 HUNTSVILLE 322 Muskoka Road #3 North 705-788-3740 MIDLAND 543 Yonge Street 705-527-8750 LINDSAY 206A–189 Kent Street W. 705-324-6518 ORILLIA 102-32 Matchedash Street N. 705-330-0370 MARKHAM 305 Renfrew Drive 905-415-8900 BURLINGTON 562 Maple Avenue 289-816-0657 WHITBY 105 Consumers Drive 289-278-1823 WillDavidson-1/2_LT_Apr13_15.indd 1 2015-04-08 4:25 PM FOCUS Continued from page 11 Summary judgment T The courts are moving towards a 'rough consensus' that judges can sit outside of their home province as long as there's a video link, says Chris Naudie.

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