Law Times

Page 12 April 18, 2016 • lAw Times www.lawtimesnews.com Class action focus of judicial powers fight BY JIM MIDDLEMISS For Law Times C anada's most notable class action — the $1.18-billion settlement in the tainted blood Hepatitis C lawsuit — is once again back in the courts. In May, the Supreme Court of Canada is scheduled to hear an appeal involving Parsons v. Ca- nadian Red Cross Society and Endean v. Canadian Red Cross Society, two of the three cases in- volved in the national settlement. Endean covers B.C. plaintiffs, while Parsons covers Ontario and the other provinces, with the exception of Quebec. The Que- bec case, Honhon v. Canada, was not brought forward as part of the appeal. The cases centre on judicial powers and if judges can sit on matters outside their home prov- inces and where they derive their power to do so — is it through their inherent power or some other legislated mechanism, such as court rules of civil procedure? Also at issue is the open court principle and the steps that must be taken to ensure that, if such hearings are permitted, they meet the open court requirement in a judge's home jurisdiction. According to Harvey Stros- berg, whose law firm represents the plaintiffs in Parsons, the case could impact national class ac- tions going forward and make it easier for judges in different juris- dictions to co-ordinate hearings and motions. "I think effective justice will suffer if judges do not have the right to sit outside their own province," he says. Shantona Chaudhury, a law- yer at Pape Barristers and part of Strosberg's legal team, adds if the court rules against the plaintiffs, "it would have a really negative impact on the ability of courts to manage national class actions." The latest fight in the blood lawsuit arose in 2012, when law- yers representing the three classes wanted to bring a motion to deal with late claims, stemming from the historic settlement, which covered victims who were in- fected with Hepatitis C from Canada's blood supply between 1986 and 1990. The pan-Canadian settlement reached in 1999 is being super- vised by the B.C., Quebec, and Ontario courts. That settlement established a $1.18-billion fund that will run over 80 years. The 13,000 eligible victims in the class can claim against the fund. It also contained a provision to ensure consistency that judges from the three provinces must substantially arrive at the same decision before their orders will take effect. As such, overseeing the agreement and any rulings around it requires co-operation among counsel and the courts in the different provinces. The lawyers proposed that the late-claims motion be brought in Alberta, because the three judges overseeing the settlement at the time were there for a conference and they could all hear the matter at the same time. However, the Quebec, B.C., and Ontario provincial attorneys general objected on the basis that the judges did not have jurisdic- tion to sit outside their provinces. Rather, they argued that the hear- ings had to be held in their home provinces. Then-Ontario Chief Justice Warren Winkler ruled that "a judge of the Superior Court of Justice of Ontario may preside over a hearing that is conducted outside of Ontario where the Ontario court has person and subject-matter jurisdiction over the parties and the issues in the proceeding." He based his ruling on the in- herent jurisdiction of the court to control its own process. He did not order that a video-link back to Ontario was necessary in the circumstance. The B.C. Court in the En- dean case also held that the B.C. Supreme Court has the power to hold a hearing outside its prov- ince under its inherent jurisdic- tion, as did the Quebec court. That led to subsequent appeals in Ontario and B.C. The B.C. Court of Appeal overturned its lower court find- ing that the English common law, which was imported into B.C., prevented judges from sitting out- side their country. That meant the matter had to take place in a B.C. court. However, the appeal court also held that if the proceeding was broadcast back to an open, staffed court in the province that was fine, a judge or lawyers could be present elsewhere. In Ontario, the appeal court in a 2-1 ruling backed Winkler's decision. How- ever, the dissenting judge felt it was unnecessary to resort to inherent jurisdiction, ruling instead that a video-link to an Ontario court- room using s. 1.08 of the Ontario Rules of Civil Procedure was ad- equate. That set up the Supreme Court showdown. In its factum filed to seek leave, which the top court granted, On- tario agreed that "with the rise of national class actions and other complex, multi-jurisdictional disputes, courts in a modern fed- eration need to work co-opera- tively to ensure that justice can be done in an efficient, effective and lawful manner." However, the province takes the position that it is unnecessary to resort to the court's inherent jurisdiction to solve the problem. Rather, the Ontario A.G. notes that every province and territory has enacted legislation or court rules that permit judges, counsel, and witnesses to participate in hearings by telephone or video- conference. Chaudhury says the Ontario and B.C. government positions have moved dramatically. "If what the provinces say is right, that this can't be done un- der inherent jurisdiction — that it must be done through statute — it hobbles the ability of the courts to respond to situations as they arise," she says. LT FOCUS I think effective justice will suffer if judges do not have the right to sit outside their own province. Harvey Strosberg If recent amendments to Canadian copyright and trademark law have clouded your IP horizon, don't worry a bit. DW 2 can help you weather any storm and come out in the clear. You can always count on Green to find the silver lining. DWW.com Lawyers, Patent & Trademark Agents For the IP silver lining, go Green. Untitled-6 1 2016-04-12 3:17 PM

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