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March 12, 2018

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Page 2 March 12, 2018 • Law TiMes NEWS er jurisdictions and that it had "ham-strung" the consortium in a way that Strosberg had not. The judge also found that the use of such an undertaking by the defendants, who favoured the Sotos group, was unusual. Jay Strosberg, of Strosberg Sasso Sutts LLP, says the un- dertaking would not achieve the objective of limiting multi- jurisdictional litigation, as Mer- chant Law Group LLP, which was not part of either consor- tium, had launched actions in several western provinces. He says that if the Stros- berg consortium had agreed to the undertaking, it would shut down its own actions in those provinces but would leave Mer- chant's actions. "It didn't achieve what they wanted," Strosberg says. Morgan noted that Sotos could not compete with Mer- chant in other provinces because of the undertaking, whereas Strosberg's ability to compete would help ensure uniformity of actions. David Sterns, a partner with Sotos LLP, however, says the de- cision means firms that take the approach of filing in the juris- diction in which they intend to move forward are going to be at a disadvantage to those that file in multiple jurisdictions. "What this means is that the arms race of multiple jurisdic- tional filings is back on," says Sterns. Margaret Waddell, of Wad- dell Phillips PC, says she finds it troubling that the decision seems to suggest that starting actions in multiple jurisdictions is seen as a good thing. "For the judge to weigh that as a plus I find troubling and con- cerning, when it's purely strate- gic and has been frowned on re- peatedly," says Waddell, who was not involved in the case. Lawyers representing the de- fendants in the proposed class action declined to comment. Sterns says the Sotos consor- tium had not decided yet wheth- er it would look to appeal the carriage decision. LT Continued from page 1 'Arms race of multiple jurisdictions filings is back on' jurisdiction" in other applica- tions of this nature, says Andrea Sanche, who acted for the Dur- ham/UOIT student union and is a partner at Ricketts Harris LLP in Toronto. "It will be very much a factual question," she adds. Two of the proposed student groups had an anti-abortion focus. The Ryerson group was called the "Men's Issues Aware- ness Society," with a stated pur- pose of bringing awareness to issues that disproportionately impact men and boys. Official status would en- title the groups to funding that ranged from between $350 and $1,200 annually as well as access to facilities for meetings. The student unions are all non-profit, independent organizations in- corporated under the provincial Corporations Act. The court applications asked for the decisions by the student unions to be quashed, arguing that they were made in bad faith, breached principles of natural justice and were contrary to the Charter values of freedom of expression and freedom of as- sociation. Perell, in his rulings, noted that the Supreme Court decided in 1990 that universities are not government actors, and another recent Superior Court ruling involving Ryerson found that student unions are not subject to the Charter. The judge observed that the Durham group, called Speak for the Weak, is "thriving on cam- pus" despite not being an official group or receiving $750 in an- nual funding. "If the Canadian Charter of Rights applied to this case, and it does not, in no way have the Applicants' rights to associate and to express and to prosely- tize their views been infringed," wrote Perell. "In the circumstances of the three cases, with some excep- tions, the law that applies is the private law of groups. Under this law, a court has only a limited ju- risdiction to review the conduct and decisions of an association," Perell wrote. Marty Moore, who acted for the applicants in the three cases, says that, despite the ultimate conclusion, he is pleased the court found it had jurisdiction. "Justice Perell is setting out an important check on the de- cisions of student unions," says Moore, a staff lawyer at the Calgary-based Justice Centre for Constitutional Freedoms. The organization has previ- ously acted in campus-related disputes in Alberta and Ontario for students opposed to abor- tion and same-sex marriage. It is appealing a Court of Queen's Bench ruling last fall that upheld a decision of the University of Alberta that required the "UAl- berta Pro-Life" group to pay the security costs for an anti- abortion event on campus. In Ontario, the student ap- plicants "had nowhere else to turn," which is why they sought judicial review, Moore explains. Whether to file an appeal has not yet been decided, but Moore disagrees that the freedom of ex- pression of the students has not been infringed. "Club status is about the ex- change of ideas," he says. While the rulings involved social issues that can attract strong opinions, the legal analy- sis conducted by Perell may be of assistance to charities and other non-profit groups, notes Sanche. "The analytical framework explains what decisions might attract court scrutiny. It is good practice for organizations to ensure their policies and pro- cedures are known by its mem- bers," she explains. LT Ruling check on power of students' unions Continued from page 1 Download a sample LawSource Case Notes newsletter Get up to date on critical issues with the LawSource Case Notes newsletter, a new addition to WestlawNext Canada, complimentary with a subscription to LawSource. The LawSource Case Notes Newsletter will be released 40 times per year in partnership with Law Times, an invaluable source of news, analysis, and other developments in Ontario's legal scene. © 2018 Thomson Reuters Canada Limited 00249HR-91618-CM Visit notes-newsletter to download your sample copy. Untitled-1 1 2018-03-07 10:04 AM

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