Canadian Lawyer

opened many eyes to the world of nonverbal communication as it drew attention to the work of Ekman, the California psychology professor emeritus who is a recognized expert on facial expressions and has advised police and anti-terrorist forces. The field as it can be applied to the practice of law is still in its relative infancy in Canada, says Denault. In one important development in this country, says Denault, last December the Supreme Court of Canada directly referred to the importance of non-verbal communication in the case of R. v. N.S. While much of the attention following the ruling focused on the right of a woman to wear a niqab in court, Denault points to a passage in the judgment where Supreme Court Chief Justice Beverley McLachlin states: "Non-verbal communication can provide the cross-examiner with valuable insights that may uncover uncertainty or deception, and assist in getting at the truth." The Montreal lawyer, who has practised civil, commercial, and administrative law after beginning his career in legal aid, is devoting more of his time to his passion for the navigation of non-verbal communication. He is developing a second workshop and this fall will begin a doctoral research project that will explore what attention non-verbal communication has received in jurisprudence in France and the U.S. as well as Canada. "People want to be informed, there is a profound desire to know more and observing the non-verbal enables you to obtain more information," says Denault. "Just realizing there is a lot more than words for many fuels interest." — Kathryn Leger kathryn.leger@videotron.ca O ntario Superior Court Chief Justice Warren Winkler ruled in late May that an Ontario judge may sit outside the province to hear a motion regarding a class action settlement agreement. The class action, certified by the courts in Ontario, British Columbia, and Quebec, relates to individuals infected with Hepatitis C after receiving tainted blood between January 1986 and July 1990. Although Ontario's attorney general objected to changing the location of the hearing, Winkler, in Parsons v. the Canadian Red Cross Society, held the Ontario court's "inherent jurisdiction to fully control its own process" permits it to convene outside the province. Counsel for the plaintiff hopes all three supervising judges from the superior courts of Ontario, B.C., and Quebec will be able to physically sit together. Rulings from B.C. and Quebec are still pending. All three jurisdictions will have to reach the same decision before all the judges are able to sit together in one location. The three superior court judges had proposed to hear the motion together in Edmonton, where they were already scheduled to travel for a meeting of the Canadian Judicial Council. But the court adjourned the motion when Ontario's Harvey Strosberg calls the decision 'a big step in the right direction.' AG threatened to challenge the court's jurisdiction. Plaintiff 's counsel Harvey Strosberg called the decision "a big step in the right direction," saying, "It's easier. It's less costly. Everybody will do it once." Winkler rejected the attorney general's proposal to link the hearings using videoconferencing. "The technology isn't good enough," said Strosberg. "The nuances of the submissions will not be as good as in person. There's a lot of interplay between the judges and the lawyers, and it's easier to do it in person. And the judges have the opportunities to sit together, to interact with each other, then discuss it amongst each other." Winkler noted while it's within a court's discretion to hold a hearing beyond its territorial borders, courts should use it sparingly and only "where the court has subject matter and personal jurisdiction over the proceeding." In this case holding a single hearing instead of three will "save expense and valuable resources," Winkler wrote. It will also prevent inconsistent decisions, he suggested. Litigating interprovincial class actions has been an ongoing problem in Canada. In 2011, the Canadian Bar Association approved part of a judicial protocol proposed by its national task force on class actions. It included standardizing settlement approval notices and co-ordinating the court approval process for multijurisdictional settlements. Despite those developments, multiple courts may still have had to hear the same motion based on similar submissions prior to Winkler's ruling. Strosberg speculated that the future will bring further changes. "In time, I think there'll be a rule that judges will get together and decide where is the preferable place to do a class action one time. Maybe it'll be just like the U.S. rule. They have a multidistrict, and the judges will decide where it's going." — David Gruber www.CANADIAN L a w ye r m a g . c o m J u ly 2013 9 Robin Kuniski Ontario judge can sit in another province: chief justice

• Cover