Canadian Lawyer InHouse

9 CANADIANLAWYERMAG.COM/INHOUSE MAY 2015 A roundup of legal department news and trends Ruling shows courts struggling with handling national class actions C anadian courts continue to struggle with how to deal with national class actions, as demonstrated in an Ontario Court of Appeal decision on whether an Ontario judge could sit together with colleagues from other provinces to consider the Hepatitis C case. "There are serious diffi culties with many national class actions that we have to deal with, and this is one example of it," says Bar- ry Glaspell, a class actions lawyer at Borden Ladner Gervais LLP. Glaspell was speaking of Parsons v. Ontar- io, a recent decision that included two partial dissents from Justice Harry LaForme's de- cision in the matter. The judges were rul- ing on former Ontario chief justice Warren Winkler's decision in 2013 in which, sitting as a Superior Court judge, he held that the Ontario court's "inherent jurisdiction to fully control its own process" permitted it to convene outside the province. In this case, the proceedings were to take place in Edmonton to hear parallel motions arising under the pan-Canadian settlement agreement in the Hepatitis C case. Supe- rior court judges from British Columbia, Ontario, and Quebec are supervising the implementation and enforcement of the settlement. Ontario's attorney general raised a num- ber of arguments in its appeal. It argued the Constitution, the common law, and legisla- tion prevent judges from conducting hear- ings outside their home province. It also suggested the only way to get around the issue was by using a video link. On the constitutional issue, the province argued the federal nature of Canada's court system envisions parallel and distinct court systems operating within their respective jurisdictions; the question of whether judges can hold hearings outside Ontario is a mat- ter for the legislature and not the courts; and conducting a hearing elsewhere infringes the sovereignty of the other province. In deciding the issue, LaForme found each judge would conduct a separate hearing to decide the matter in question. He noted the idea of a single location was to enhance co-operation between the three judges who would nevertheless issue orders from their home provinces. "In my view, such a process respects the distinct nature of the courts of each prov- ince while stimulating the cooperation re- quired to effectively administer the Settle- ment Agreement," wrote LaForme. LaForme also found Ontario had effec- tively conceded that out-of-province hear- ings aren't presumptively unconstitutional as it recognized that the legislature could authorize them by statute. IH WEATHER THE STORM Powerful allies in class actions. lavery.ca Untitled-5 1 2015-04-06 11:16 AM

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