Law Times

lAw Times • April 30, 2012 Sixties Scoop ruling challenged FOCUS BY MICHAEL McKIERNAN Law Times A group of aboriginal chil- dren suing over their removal Sixties Scoop have turned to the Court of Appeal for Ontario to get their class action back on track after the Divisional Court overturned conditional certification granted by a motion judge. The 16,000-strong class in in a case known as the from reserves Brown v. Canada (Attorney General) allege their cultural iden- tity was stolen when authorities sent them to live with non-aborig- inal adoptive families and foster caregivers from 1964 to 1984. Ontario Superior Court Justice Paul Perell initially granted the group certification on the condi- tion that they submit an amended statement of claim with revisions to the class definition, common issues, and litigation plan that fit with his framing of claims of negligence and breach of fiduciary duty. But a Dec. 28 ruling by the would deny the attorney general of Canada an opportunity to dispute whether the amended statement of claim disclosed a cause of action. "In our view, the motions judge s approach a remarkable opportunity for any powerful and well-funded defen- dant to say we need a different judge because this one has already expressed his feelings about the merits of the case. defence partner at Hicks Morley Hamilton Stewart Storie LLP, says the decision is much narrower than some have read it. "The court is saying it' a fairness issue because the court thought the attorney general was denied the opportunity to fully ague the issue of whether the amend- ments would satisfy the test or not. Regardless of the outcome, parties should be able to argue it fully. It' s primarily also about case management judges in class actions and the fact that although they have broad discre- tion, there are some limits to it." But Kirk Baert, a partner at s Koskie Minsky LLP, says that in his view, Perell' Divisional Court sent the plaintiffs back to the drawing board after its finding that Perell' tical one that fell within his dis- cretion. He fears the reversal may restrict the use of conditional certi- fication in the future. s approach was a prac- Frank Cesario, a class actions " it, according to Baert. "With amendments, the class action that may go forward is found within the existing state- ment of claim but it is a pruned or focused class action that emerges from the current pleading, wrote in his May 2010 decision. "To set aside the whole thing " Perell and make them start over is to nobody' defendants," says Baert. "It just delays the case and means there'll be another round of motions and another round of appeals." Cooper worries the controversy 'Unless it's reversed, we're looking at a 2-1/2-year setback at best,' says Morris Cooper. "In the U.S. where they've had three decades of class actions, it's not uncommon at all," he says. "The concept is not that you have to hit a bull' s-eye but that if you have a case that should be certified, it will be." While Perell decided the kicked up by the procedural class action issue will overshadow the stories of his clients, many of whom claim they were abused and iso- lated during their time in foster and adoptive care. About 300 plaintiffs turned up in person to hear the cer- tification motion argued over three days in Toronto in April 2010. The action is only against the original claim didn't disclose a cause of action, he found that the certifiable claim arose from federal Crown despite the fact it was provincial authorities that removed the children. "That' s because of the peculiar s advantage except the legislative situation that existed in the 1960s where the federal gov- ernment effectively offloaded its responsibility for aboriginal child welfare to the province, Cooper. "Then the province treated them as they treated everyone else, which is to say by sending them to white foster homes. The case is a very important one in our view. Similar lawsuits surfaced in " says " other provinces after the Ontario case began, but the Divisional Court setback means this province' plaintiffs may now be the last ones to get a resolution. Cooper says he was also upset s by a costs award of $25,000 against the plaintiffs after the Divisional Court found in the attorney gen- eral' that these two very obviously indigent representative plaintiffs should be hit with $25,000 for the consequences of a ruling they never asked for. They asked to be certified as a class action. They didn't ask for the procedural issues that have now blown up. "It's remarkable and troubling s favour. " LT PAGE 11 seems to have predetermined that a cause of action will emerge so long as the fresh pleading is prepared in accordance with his reasons," reads the Divisional Court decision. The court added: "This was not simply a case of tidying up a litigation plan or some deficiency in the pleading. Here the motions judge concluded that the pleading before him failed to disclose a cause of action." The Divisional Court panel also ordered the case to go back for a fresh certification hearing before another judge, a fact that Morris Cooper, the group' found particularly troubling. He's ing at a 2-1/2-year setback at best," says Cooper. "Had they accepted the argument and remitted it back to Perell for a ruling, saying he shouldn't have accepted the new amended pleading before see- ing it, that would be one issue. But what they did was to kick Perell off the case. From our standpoint, it' still waiting on the result of an application for leave to appeal the Divisional Court ruling. "Unless it' s reversed, we're look- profoundly disturbing that a class action of s should be forced back to Square 1 because of some concern that the judge had moved too quickly on it." Cooper notes the class action this nature and scope s lawyer, WEBCAST OPTION AVAILABLE FOR EACH COURSE! Accessibility for Ontarians with Disabilities Act (AODA) Toronto - June 18, 2012 Canada's New Anti-Spam Legislation: a Very Wide Objective, a Very Wide Swath Toronto - May 28, 2012 Vancouver - May 30, 2012 Calgary - May 31, 2012 e-Discovery: Current Litigation and Records regime is an intensely case-man- aged one and says judges in the area should have more leeway to be proactive. "You would have thought some Management Strategies Toronto - May 9, 2012 Calgary - May 10, 2012 Vancouver - May 15, 2012 very serious discussion would have occurred about the circum- stances under which you remove a case management judge in a case management system. He did what a class action judge is supposed to do, which is define the issue, narrow it, set out the common issues, and identify the class. 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