Law Times

Page 14 November 28, 2016 • Law Times www.lawtimesnews.com Supreme Court of Canada CIVIL PRACTICE AND PROCEDURE CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Class proceedings acts gave judges power to sit outside of province Three separate class actions took place on behalf of individuals in- fected with hepatitis C, as result of tainted blood supply between 1986 and 1990. B.C. and Quebec courts oversaw actions involving those provinces' residents, while Ontario action involved Ontario residents and those from all other provinces. Settlement agreement was made in 1999, authorizing three provincial courts to super- vise claims and requiring agree- ment among courts for settle- ment to take effect. In 2012, class counsel made motions relating to settlement agreement, proposing that judges from all 3 provinces hear motion sitting in one loca- tion. Provincial governments op- posed motion, stating that judges lacked jurisdiction to sit outside own province. On motions for directions, motions judges in all 3 provinces rules that they could sit outside province for purpose of settlement agreement motions. Ontario and B.C. appealed from judgment. Court of Appeal in both provinces found that it was permissible for provincial judges to conduct hearing, with use of video or telephone link. Repre- sentative plaintiffs appealed to Supreme Court, stating that link was not necessary for judges to hear matter outside of province. Ontario cross-appealed from judgment, claiming that there was no power for judges to hear matter outside of province. Par- ties agreed before Supreme Court hearing that judges had discretion to hear matter. Source of discre- tionary power and conditions of its use were still live issues. Appeal allowed; cross-appeal dismissed. Judge had discretion in national class action, to hold hearing in conjunction with other judges in related class actions. Discre- tion could be used as long as court's coercive powers were not necessary, and hearing was not contrary to law of governing ju- risdiction. Class proceedings acts in both Ontario and B.C. gave judges power to sit outside of province. Relevant law gave judg- es inherent jurisdiction to control own processes. Video link was not requirement. Court was to be guided by principles, including whether sitting outside province would impinge on sovereignty of another province. Court was to take into accounts benefits and costs of out-of-province pro- ceeding. Court was to determine whether terms such as video link or extraordinary costs were nec- essary. Endean v. British Columbia (2016), 2016 CarswellBC 2891, 2016 CarswellBC 2892, 2016 SCC 42, 2016 CSC 42, McLachlin C.J.C., Abella J., Cromwell J., Mol- daver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2014), 2014 CarswellBC 363, 2014 BCCA 61, Saunders J.A., Tysoe J.A., and Go- epel J.A. (B.C. C.A.). (S.C.C.); re- versed (2015), 2015 CarswellOnt 3336, 2015 ONCA 158, R.G. Juri- ansz J.A., H.S. LaForme J.A., and P. Lauwers J.A. (Ont. C.A.). JUDGES AND COURTS JUSTICES, MAGISTRATES AND PROVINCIAL COURTS Remuneration Independent review of initial remuneration of judges appointed to new judicial office is necessary In 2004, government of Quebec reformed its regime of justices of peace by creating two categories of justices of peace. Government set starting remuneration of new category well below the previous levels. In 2008, association of jus- tices of peace and its individual members made application in Superior Court arguing that pro- visions relating to setting and review of remuneration violated financial security guarantee of judicial independence. Applica- tion judge dismissed application, holding that the government's decision had been validated by a special committee and that can- didates applied for the office with full knowledge of the situation. Court of Appeal dismissed ap- peal brought by association and its members . Court of Appeal considered level of remuneration that was fixed to be high enough to guarantee independence of new justices of the peace. Asso- ciation and its members appealed. Appeal allowed in part. In order to adequately protect judicial in- dependence, whenever new judi- cial office is created, independent review of initial remuneration of judges appointed to new office is always necessary. Review by re- muneration committee should take place within reasonable time after appointment of the new judges. In present case, reform breached financial security guar- antee of judicial independence because remuneration for 2004 to 2007 was not reviewed within reasonable time after new ap- pointments. Indeed, the remu- neration for that period has never been reviewed. Since Act created new judicial office, initial remu- neration of all judges appointed to this office needed to be reviewed retroactively, within reasonable time after their appointment. As ss. 27, 30 and 32 of Act did not provide for retroactive committee review within reasonable time, these sections infringed institu- tional financial security guaran- tee of judicial independence, and were thus contrary to s. 11(d) of Canadian Charter of Rights and Freedoms and preamble to Con- stitution Act, 1867. Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General) (2016), 2016 CarswellQue 9318, 2016 CarswellQue 9319, 2016 SCC 39, 2016 CSC 39, McLach- lin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2014), 2014 CarswellQue 14611, 2014 CarswellQue 9133, 2014 QCCA 1654, Bouchard J.C.A., Vauclair J.C.A., and Dalphond J.C.A. (C.A. Que.). Federal Court of Appeal CIVIL PRACTICE AND PROCEDURE CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Motion for class proceeding certification was dismissed Plaintiffs were chief and First Na- tions group, who were subject of treaties made between 1871 and 1921. Members of group received $5 yearly payment, from rate set in 1875. Plaintiffs claimed that lack of adjustment to yearly rate rendered payments meaningless. Plaintiffs moved to have action certified, to include other First Nations under treaties. Motion was dismissed, as Federal Court found there was no common issue. Plaintiffs appealed from dismissal of motion. Appeal dis- missed. Federal Court identified proper issues and authorities. Court's finding that plaintiffs sought relief beyond what was established in caselaw was prop- er. Different treaties were in place for proposed class members, so that common question was not established. Had scope of action been limited to one treaty, prob- lem would have been avoided. R. v. Horseman (2016), 2016 CarswellNat 4975, 2016 FCA 238, Johanne Gauthier J.A., Da- vid Stratas J.A., and Mary J.L. Gleason J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 5461, 2015 CarswellNat 9094, 2015 FC 1149, 2015 CF 1149, Russel W. Zinn J. (F.C.). PLEADINGS Statement of claim Action was struck as disclosing no reasonable cause of action Plaintiff D brought action in Federal Court, claiming right not to work while being afforded reasonable standard of living. Action was struck as disclosing no reasonable cause of action, with this finding being upheld on appeal. D appealed from Fed- eral Court judgment. Appeal dismissed. D's claim on appeal that she owned share of Consoli- dated Revenue Fund could not succeed. Previous claims were properly dismissed, as there was no basis in law for them. Doell v. R. (2016), 2016 Car- swellNat 4935, 2016 FCA 235, Gauthier J.A., David Stratas J.A., and Gleason J.A. (F.C.A.). IMMIGRATION AND CITIZENSHIP REFUGEE PROTECTION Practice and procedure in refugee claims Part of judgment which granted costs to Minister was set aside OS f led Afghanistan in 1987 to live in Pakistan. In 2010, OS was accepted for resettlement to Can- CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. 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