Law Times

PAGE 4 Inquiry head 'stern but extremely fair' Justice Paul Bélanger to lead probe into fatal mall collapse NEWS many years. A month aſter the Algo Cen- O BY ELIZABETH THOMPSON For Law Times TTAWA — It promises to be one of the most diffi- cult inquiries On- tario has seen in tre Mall in Elliot Lake, Ont., collapsed, controversy contin- ues to swirl around longtime concerns over the safety of the shopping centre and the rescue operation itself. On top of that, the inquiry will be taking place at the same time as a criminal tion and a $30-million lawsuit against the mall, its owners, and the Ontario government. However, those who know investiga- Justice Paul Bélanger say the On- tario government couldn't have chosen a better person to head the inquiry. "He has a real intellectual curiosity," says Ontario Court than 35 years ago when Bélanger hired him as an arti- cling student. "He' dent of the law but he also has far broader in- terests than that. He reads quite widely. He' s a stu- ally interested in science, math, literature, his- tory, art. There' s re- almost no area you can think of in which he wouldn't have some interest and have done some reading. s Justice Paul Bélanger Justice Brian Lennox, who first met Bélanger more Attorney General John Gerret- sen appointed Bélanger, 69, to head the inquiry that will probe the June 23 collapse of the mall. Doloris Perizzolo, 70, and Lucie Aylwin, 37, died when part of the parking lot atop the mall caved in, sending deadly debris down into the shopping centre. Earlier this month, Ontario " has a year aſter the inquiry be- gins to issue a public report. But while inquiry B é l ange r the promises to be a one, Bélanger is no stranger to hard work, complicated cases or politi- cally challenging proceedings. Born in sensitive ily with deep roots in Ottawa, Bélanger completed a bachelor of commerce degree at the Uni- versity of Ottawa in 1962. That was the same year he was com- missioned as a seagoing offi- cer in the navy' 1942 to a Franco-On- tarian fam- training program he participat- ed in from 1958 to 1965. Bélanger graduated with a law degree in 1968 from Osgoode s regular officer Hall Law School and was called to the Ontario bar in 1970. He practised law with Paris Mercier Sirois Paris & Bélanger, a largely francophone law firm that one of its former articling students, Maureen McTeer, de- scribed in her biography as "small but prestigious." In 1978, at age 35, Bélanger joined the bench of the Ontario Provincial Court' sion. In 1984, he became a senior judge. From 1996 to 2002, he served as regional senior justice for the east region of the Ontario Court of Justice. Although he retired from full- s criminal divi- as well as MPs, MPPs, political staffers, and top public servants who have appeared before him on charges such as embezzling mon- ey or fraud. However, Lennox, who' rently serving as executive direc- tor of the National Judicial Insti- tute, says high-profile cases don't faze Bélanger. "He' s cur- nature of the case. Whether it be politically sensitive or simply high profile, he' s never been affected by the on their merits." Lawyers soon learn that the s always dealt with cases time service in September 2008, Bélanger has continued to sit on a per diem basis and serve as the court' torney general's French language s representative on the at- services committee. In May, he became a deputy judge of the Tax Court of Canada. During his time on the bench, Bélanger has heard a wide range of cases. They include a courthouse cleaner he sent to jail for stealing less than $10 from a desk drawer former naval officer also runs a shipshape court. In 2005, one double-booked defence lawyer sent a colleague to tell Bélanger he couldn't appear because he was sick. Bélanger had a police officer hunt down the lawyer, who was pleading another case in Renfrew, Ont., and then cited him for contempt of court. "He has a reputation of be- ing a bit stern but extremely fair," says Lennox. "He's objective, he's fair, he's measured. He's a very good judge." LT Court issues guidance on communication between defendants, putative class members defendants can communicate with those who aren't known to be represented by counsel. In a decision released July 13, I BY SIOBHAN McCLELLAND For Law Times t's now easier for defendants to settle with potential class members before certification aſter an Ontario court ruled will write threatening letters and that' the defendants, says there's a fun- John Campion, counsel s unacceptable." for damental difficulty that this case goes some distance to answer. Any time there' a putative class, there's concern it s communication with Superior Court Justice Paul Perell allowed the defendants, Via Rail Canada Inc. and Canadian Na- tional Railway Co., to send letters to putative class members who weren't represented by counsel. They can do so as long as they ad- vise plaintiffs' counsel seven days before they send out the letters and they receive copies of them. Before the ruling in Lundy v. Via Rail Canada Inc., com- munications between defendants and putative class members were in a grey area and it wasn't clear whether they were appropriate. Part of the problem with pre- certification communications is that neither defendants nor their counsel know whether some of the putative class members have retained lawyers. "The issue is whether or not the defendants are overreaching," says Harvey Strosberg, counsel for about 30 of the 80 putative class members. Strosberg notes defen- dants may have legitimate reasons for communicating with and pro- viding information to class mem- bers, including in situations where there' s a continuing relationship. "But sometimes, the defendants may discourage people from join- ing the class action. "For a company that wants to be responsible, this is a helpful way to [communicate with puta- tive class members]," Campion says, adding the decision provides a roadmap to allow for settlement. The court' the defendants sent letters to pas- sengers who had been on a train that derailed in Burlington, Ont., on Feb. 26, 2012. The letters in- cluded offers of $3,000 if passen- gers agreed to give up any poten- tial claims. The ruling noted three putative s decision came aſter class members accepted the de- fendants' offers and signed releas- es. The court allowed these settle- ments to proceed and ordered that copies of the releases be given to plaintiffs' counsel. "The issue was that Via wanted to buy these people off cheap," says Strosberg. "They made a lowball offer and some people accepted it." The court noted that commu- nications between defendants and putative class members aren't nec- essarily a bad thing. Although the court didn't have information on the circumstances of the putative class members, Perell suggested "it is conceivable that they are adult, intelligent, competent, fully in- formed putative class members, perhaps assisted by indepen- dent legal advice or indepen- dent legal representation. It is also conceivable that they sur- vived the train derailment without a significant injury. If those were the circumstances, accepting Via Rail' s settlement offer would pro- vide these putative class members immediate access to justice and the defendants could be com- mended for being responsible corporate citizens doing the right thing. 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