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Class actions, military justice are among novel cases SCC to weigh

Can judges work collectively outside their provinces?
By Cristin Schmitz
April 15 2016 issue

J.J. Camp, left, and Sharon Matthews of Vancouver’s Camp Fiorante Matthews Mogerman, are co-counsel in a multi-jurisdictional hepatitis class action matter before the Supreme Court of Canada, involving whether judges from different provinces can sit together and jointly administer settlements. [Alistair Eagle for The Lawyers Weekly]

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Class action and military justice appeals raise issues of particular note to lawyers on the Supreme Court of Canada’s spring docket.

At press time, the top court’s spring session was not fully booked, with just 14 cases slated for argument beginning April 21 and none scheduled for June.

Questions on the court’s menu include whether a three-year wait for trial violates the Charter’s s. 11(b) prohibition against unreasonable trial delay, and whether judges can rectify corporate records to reflect that a commercial transaction was intended to occur on a tax-free basis.

Among the scheduled appeals that break new ground are twin hepatitis C class action settlement cases out of British Columbia and Ontario, to be heard together May 19: Endean et al. v. British Columbia and Parsons et al. v. Ontario.

The novel issue: In order to enhance fairness, efficiency and consistency, can superior court judges from different jurisdictions sit together outside their provinces in order to jointly administer multi-jurisdictional or national class action settlements?

The judges supervising the national hepatitis C settlement in Ontario, Quebec and B.C. agreed they had inherent jurisdiction to do so, but those provinces’ attorneys general disagreed, with Ontario threatening to go to court to block the supervising Ontario judge from sitting outside the province, if need be.

The Supreme Court’s pronouncement on the legality of extraprovincial hearings is expected to affect a number of class actions.

“Class actions have introduced multi-jurisdictional issues in a different way in Canada than we have seen before, and they call for new solutions,” explained Endean class counsel Sharon Matthews of Vancouver’s Camp Fiorante Matthews Mogerman. “There are many cases in class actions…where more than one court is involved in making important rulings, and a high-level of co-operation — both a spirit of co-operation and a practical co-operation — among the courts is necessary for the effective and efficient adjudication of multi-jurisdictional class actions.”

The dispute arose because the provinces have failed for nearly two decades to enact laws governing how to iron out the procedural wrinkles of the growing number of pan-Canadian settlements.

“Although the courts have invited legislation to deal with appropriate processes to facilitate multi-jurisdictional and national class actions, this has not happened and it is therefore left to the courts to fashion these processes,” said Matthews’ co-counsel J.J. Camp. “We contend that the three chief justices who were case-managing this multi-jurisdictional class action got it right, and that the Court of Appeal of British Columbia and the Ontario Court of Appeal got it wrong,” he said by e-mail.

In 2012, the three then-chief justices of Ontario, British Columbia and Quebec, who were jointly supervising the administration of the $1.1 billion national hepatitis C settlement, were scheduled to meet in Edmonton to attend a Canadian Judicial Council meeting. They decided to take advantage of that occasion by sitting together to hear concurrent motions from class counsel from Quebec, Ontario and B.C. Class counsel were seeking to extend the deadline to file claims under the 1999 agreement which compensated thousands of people infected, via the Canadian blood supply, with hepatitis C between 1986 and 1990. (The judges were to hear arguments together, but each was to decide separately the motion over which he had jurisdiction).

However, Ontario Attorney General John Gerretsen balked at the joint hearing, objecting that superior court judges are barred from sitting outside their provinces by statute, the common law, the Constitution and the open court principle. The late-claims motions were therefore adjourned and argued later at separate court hearings that culminated in conflicting decisions and the suspension of the late-claims process.

In deciding class counsel’s motions for directions from each supervisory judge, in 2013 Ontario Chief Justice Warren Winkler, B.C. Supreme Court Justice Robert Bauman and Quebec Superior Court Chief Justice François Rolland ruled that their inherent jurisdiction to control the court processes for hearing matters over which their courts had personal and subject-matter jurisdiction entitled them to sit together, outside their home provinces, when the interests of justice required it. The three supervising judges rejected the assorted opposing submissions of the attorneys general of Ontario, Quebec and B.C. — which included an argument that because the English common law dating back hundreds of years prohibited judges in England from sitting outside English borders, that law, as received in B.C. in 1858, prohibits Canadian provincial superior court judges from sitting outside their provinces.
Matthews said “we take issue with the…point that there is a common law prohibition. But if there is one, it’s from very ancient practices in the United Kingdom which are not suitable to modern-day Canada, and…the Supreme Court of Canada has said that when old rules — particularly old jurisdictional rules — are not suitable to modern-day Canada the courts can, and should, change them.”

The attorneys general of Ontario and B.C. appealed their first-level defeat, while Quebec did not. The Ontario Court of Appeal concluded that the Superior Court’s inherent jurisdiction does allow a judge to sit outside the province, but that that hearing must be video-linked to an Ontario courtroom (which can be devoid of counsel or the judge) to satisfy the open court principle. For its part, the B.C. Court of Appeal held that the common law bars a judge from sitting extra-provincially. However the appeal court went on to create a legal fiction to facilitate joint extra-provincial hearings. Thus a hearing would be deemed to “take place” in B.C. — even when the judge, the lawyers, and witnesses, are physically located outside B.C. — so long as the extra-provincial elements of the hearing are electronically linked to an open and staffed (but otherwise empty) courtroom in B.C.

Matthews argues a video link “can be a means to have greater participation across the country” but “it’s not a lawful jurisdictional foundation. It’s an artifice. And artifices shouldn’t be the basis on which you are doing it, because they are very vulnerable. And then if someone calls you on it, you have had hearings that were jurisdictionally unsound. So we want a correct ruling…[that] this can be done and, if so, it should be done, we say, in very rare circumstances, and we set out…a threshold test, and then if that threshold is passed, a series of balancing considerations as to whether it should be done.”

Another pair of appeals of first impression, to be heard by the top court April 25, has the potential to shake up the military justice system, by striking down, as contrary to the s. 7 Charter principles of fundamental justice, separate provisions in the National Defence Act which empower the minister of National Defence to appeal acquittals, stays and sentences to the Court Martial Appeal Court (CMAC) and to appeal CMAC decisions to the Supreme Court of Canada: R. v. Cawthorne and R. v. Gagnon.

The cases are about “the recognition of prosecutorial independence as a principle of fundamental justice,” said Lt.-Col. Jean-Bruno Cloutier, deputy director of Defence Counsel Services. “Is a minister of the Crown, who is not the attorney general…sufficiently independent to prosecute a crime in Canada?” explained Lt.-Cmdr. Mark Létourneau, co-counsel with Cloutier for the three respondent military members prosecuted for sexual offences under the Code of Service Discipline.

If the top court agrees with the defence and the CMAC that the minister of Defence is not independent, it “will remove the last quasi-judicial power of the minister,…and that’s consistent I think, to my knowledge, with the role of all ministers of the Crown who have an executive role, not a quasi-judicial role,” said Létourneau.

Last December in Gagnon, [2015] CMAC 2, the CMAC struck down the Defence minister’s power to launch criminal appeals to the CMAC on the basis that reposing that quasi-judicial power in a politician, and a member of the executive bound by Cabinet solidarity, violates the Charter’s s. 7 prohibition against depriving people of their liberty, except in accordance with the principles of fundamental justice — which include prosecutorial independence.

“The minister has simply no objective institutional independence required for the independent exercise of a function that can lead to imprisonment of one of his employees or [the employee’s] dismissal,” the CMAC reasoned, although it suspended its declaration of invalidity for six months.

The court recognized that it is crucial “to make sure that the discretion of the prosecution is protected from political interference and judicial supervision,” Cloutier said.

However, the prosecution contends that the court struck down the minister’s right of appeal by extending the principle of prosecutorial independence beyond anything previously recognized in case law, academic writing or international norms.

“Properly understood, the principle of prosecutorial independence requires that prosecutorial decisions be made free from partisan political considerations, as well as any other improper motives,” Col. Bruce MacGregor, the Canadian Armed Forces’ director of military prosecutions, acknowledges in the appellant’s factum. But that principle is protected “by a number of regimes, including applications for abuse of process and the tort of malicious prosecution. Both the principle, and the regimes which guard the principle, apply equally to the minister of National Defence in the exercise of his powers under ss. 230. 1 and 245(2) of the NDA, as they do to all public officials who exercise a prosecutorial function.”

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