Canadian Lawyer

8 A p r i l 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m RegIonal wRap-up T he Newfoundland and Labrador government will not be compelled to take part in mediation as part of a class action suit over the province's legal responsibility to people injured in motor vehi- cle accidents involving moose. Supreme Court Justice Valerie Marshall determined the mediation was unlikely to be successful before it even got off the ground. "It's clear that the issues in this case, more specifically the question of liability in respect of negligence, are not issues amenable to mediation," Marshall said in her oral decision. Several factors had to be considered in this case, she noted. They included the number of parties, the state of the pleadings, and the complexity of the issues, as well as the financial resources of the parties. "I've considered all these factors, but it's my view in a case such as this where a party is resisting the prospect of a mediation, it is imperative that an order for mediation only be made when the legal issues are shown to be amenable or conducive to mediation," the judge concluded. Although it has conceded responsibility for the reason- able safety of the highway system, the province resisted mediation because it would require a concession on one of its main defences, specifically that a duty of care is owed. The case also raised the issue of access to justice. Ches Crosbie, counsel for the plaintiffs, referenced Supreme Court of Canada decisions indicative of a culture shift to resolving disputes outside the courtroom and argued mandatory mediation was an element of access to justice. However, Marshall found these are not overriding concerns in this case where the likelihood of success is negligible due to the nature of the issues, particularly the issue of what constitutes government policy versus operational decisions, and the issue of when immunity actually arises. The class action suit alleges negligence on the part of the government over a 10-year period and is premised on the contention the government was negligent in failing to take measures to prevent moose-related accidents. The trial was scheduled to begin April 1. — DM No moose mediatioN marshall fiNds VIVe les juges lIbres! centrAl w e all want judges to be inde- pendent. Anyone who has the power to send someone to jail for decades or decide whether or not one will have to pay tens of thou- sands of dollars in damages had bet- ter be guided by the law and only the law, and not by the government who appointed the judge . . . especially if one is litigating with that government. But what about the administrative adjudica- tor who decides to take away an alcohol permit thus condemning a sports bar to shut down just as the hockey playoffs are about to start? Or the one who decides it is OK if a new highway is built smack in the middle of someone's cornfield, basically forcing them to abandon farm- ing life? In Quebec, each year, over 140,000 cases are handled by 15 administrative tribunals. The decisions handed down by these administrative judges can affect, sometimes deeply, the lives of citizens. It seems the nomination system of nine of these tribunals fails miserably to ensure the competence and independence of their adjudicators, according to a report published in February. As it happens, the people most horrified by the situation are the administrative judges themselves — so much so their asso- ciation, the Quebec Administrative Judges Conference, has asked some experts to study the problem and propose a solution. The researchers, from the University of Montreal and Laval University in Quebec City, were directed by Montreal law professor Pierre Noreau and concluded for those nine tribunals there was a total dearth of rules regarding the nomination of judges and the renewal of their mandates. This leads, it says, to "partisan influ- ence" and "favouritism." The participants' testimonies, coming from 28 interviews with administrative judges, are scathing: They reveal the government sometimes uses its appointment power to provide a sinecure for certain people or to get rid of judges who are no longer in favour. It says the actual system, vulnerable to partisan influence, is sus- ceptible to lead to the replacement of widely respected judges by less well-prepared or less competent ones. The CJAQ has been denouncing this situation for many years and is giving its full support to the report's main recommendation: to pass an umbrella law to establish a framework for the selection pascal elIe

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