Legal Feeds Blog
The Supreme Court of Canada has provided direction in multidisciplinary class action proceedings, affirming that, in collaborating and co-ordinating such proceedings across multiple jurisdictions, the courts have broad and flexible powers through provincial class action statutes and the inherent jurisdiction of the court.
|Harvey Strosberg hails the SCC’s judgment as a vindication of the 2013 decision of Ontario motion judge Warren Winkler.|
The SCC rendered its decision today in two companion class action proceedings brought on behalf of individuals affected by the “tainted blood” tragedy of three decades ago.
“This judgment is a breath of fresh air,” says Paul Pape of Pape Barristers PC in Toronto, counsel for Dianna Louise Parsons (deceased), the representative plaintiff in Ontario and several other jurisdictions across Canada. “The SCC has fully embraced class proceedings as a procedural tool to enhance access to justice, without any equivocation at all. It’s important for the country and the administration of class proceedings.”
Endean v. British Columbia and Parsons v. Ontario were class actions on behalf of individuals infected by the Canadian blood supply with hepatitis C between 1986 and 1990. A pan-Canadian settlement agreement was reached in 1999, which assigned a supervisory role to the British Columbia, Quebec and Ontario superior courts.
In 2012, class counsel filed motions before the supervisory judges relating to the settlement agreement, but British Columbia, Quebec and Ontario opposed the proposal on the basis that the judges didn’t have jurisdiction to conduct hearings outside their home province. However, motion judges in each of the three jurisdictions agreed that superior court justices could sit in another province with their judicial counterparts to hear the settlement agreement motions.
Ontario and British Columbia appealed. The Ontario Court of Appeal agreed with the motions judge that the basis for the power to conduct a hearing outside the province was the superior court’s inherent jurisdiction, but it concluded that a video link was required between the out-of-province and Ontario courtrooms. The British Columbia Court of Appeal found that common law prohibited superior court judges from sitting outside the province at all.
The Supreme Court judgment, written by Justice Thomas Cromwell, who retired in September, allowed the representative plaintiffs’ appeal and dismissed Ontario’s cross-appeal.
Pape and Harvey Strosberg of Sutts Strosberg LLP in Windsor, Ont., who is another counsel for the Parsons class, hail the SCC’s judgment as a vindication of the 2013 decision of Ontario motion judge Warren Winkler, then sitting as a judge of the Superior Court of Justice.
“This is considered to be a contentious decision; the Supreme Court of Canada has vindicated him entirely,” says Pape.
Strosberg also noted the SCC’s rejection of the necessity of the video link to connect courtrooms in different jurisdictions and the dismissal of the common-law argument. “In England, in 1858, when B.C. was incorporated . . . the common law prohibited judges in England from sitting outside of England,” says Strosberg. In this decision, the SCC justices have said “maybe it was good in 1858, but not today. Common law has changed.”
Sharon Matthews of Camp Fiorante Matthews Mogerman LLP in Vancouver is counsel for Anita Endean, the representative plaintiff in British Columbia. She also sits on the Canadian Bar Association’s National Class Action Task Force, which is looking at multijurisdictional class actions.
“The SCC has interpreted s. 12 in most of the common-law statutes [for class-action proceedings] as giving very broad and flexible powers to the courts,” she says. Some courts dealing with s. 12 “have limited the instances and the purposes for which it can be used, and I think the statements in this [SCC] case — that those provisions should be seen as very broad and providing the courts with flexible powers — are important statements.
“What this case says is the way we deal with cases is not frozen in time,” says Matthews. “It will evolve to meet the demands of cases before the courts, in the context of the real imperative for co-ordination for superior courts with overlapping jurisdictions.”
Despite the dismissal of an injunction request attempting to stop the Cleveland Indians baseball team from using its name and logo during the play-off game against the Toronto Blue Jays on Monday, lawyers involved in the case say the fight is far from over.
|Rebecca Jones, partner at Lenczner Slaght Royce Smith Griffin LLP, says the important thing is that failing the test for the injunction is different from a determination on the merits of their case.|
The issue centres on the team’s logo, Chief Wahoo, a red-skinned cartoon head with a toothy grin and a feathered headband considered to be a caricature of an aboriginal man, combined with the name Indians. Canadian indigenous activist Douglas Cardinal filed human rights complaints with both the Human Rights Tribunal of Ontario and the Canadian Human Rights Tribunal, as well as an application for an interlocutory injunction with the Ontario Superior Court of Justice pending the outcome of the human rights complaints, against Cleveland Indians Baseball Co. Ltd. Partnership, Major League Baseball and Rogers Communications Inc.
Cardinal, who is of Blackfoot descent, wants a ban on the use of the logo and the word Indian in association with that logo, which the case argues is racist and discriminatory under Canadian law.
“What we’re saying is when you deliver a service in Ontario, whether it be Rogers through the Rogers Centre or its broadcast, or the Cleveland team by coming and participating in that service, when you’re in this province you have to deliver that service without discrimination,” says Rebecca Jones, partner at Lenczner Slaght Royce Smith Griffin LLP and counsel for Cardinal.
The factum for the injunction says the aim is to end, at least in Canada, “the use of a racist name and logo that has no place in Canadian society.”
It goes on to say the use of the name and logo “discriminate, harass, and incite discriminatory conduct against persons of Indigenous descent” and argues without the injunction, the offensive name and logo will be given an “unprecedented platform in Canada. That will further perpetuate and normalize discrimination against Indigenous Peoples.”
Justice Thomas McEwen has yet to give reasons for his ruling.
Another of the lawyers representing Cardinal, Paul-Erik Veel also of Lenczner, says he was disappointed with the judge’s decision, but adds the rejection of the injunction does not necessarily touch upon whether the name and logo are discriminatory.
“The question of whether an injunction is appropriate involves a lot of considerations beyond the merits of the case and one of the things our opponents argued quite strenuously was all of the practical problems that could emerge if an injunction was granted,” he says.
"Having to make the last minute changes on three hours’ notice they said would pose significant inconvenience and would essentially be impossible.”
Jones says the important thing is that failing the test for the injunction is different from a determination on the merits of their case. She says applications to the human rights tribunals were filed on Oct. 14.
Some of the allegations relate to the broadcast of the offensive logo and team name, which is a federal issue, while hosting the game in Ontario sees the matter also fall under provincial jurisdiction, which is why applications were filed with both federal and provincial human rights tribunals.
“Under Ontario human rights law you can’t have discrimination in the delivery of a service and there are various grounds of discrimination that are prohibited,” she says.
“What’s going to be before the human rights tribunal is whether or not offering a service to the public — which is a sports event — whether or not using the Chief Wahoo logo and in particular the Chief Wahoo logo in association with the name Indians, constitute discrimination in the delivery of a service.”
Jones, who says it’s an important case about racial discrimination in the delivery of services in Ontario, points out they aren’t seeking anything that would have an “extra-territorial effect” by impacting use of Cleveland’s name and logo in other jurisdictions.
“If the human rights commission found in our favour what it would mean would be that while the team is playing in Ontario, they would play using their jerseys that contain the C logo which they’ve identified as being their primary logo in any event,” Jones says.
They already have various types of jerseys, she says, including ones that say Cleveland across the chest. The team would have to wear jerseys that combined their C logo and the word Cleveland instead of jerseys that say Indians and Chief Wahoo. Similarly, when broadcast to the Ontario public, the broadcast would call the team Cleveland and use the C logo.
The legal reasoning of Newfoundland Court of Appeal Justice Malcolm Rowe is front and centre in a Crown appeal in a sexual spousal assault case the Supreme Court of Canada is scheduled to hear early in 2017.
The nominee for the Supreme Court is alleged by the Crown to have made a number of legal errors in a judgment issued this spring in R. v. S.B. Rowe wrote the majority decision, which declined to order a new trial for a man acquitted by a jury of assault, sexual assault and weapons charges.
Rowe, with Justice Charles White concurring, outlined several legal errors made by the trial judge, particularly in the application of s. 276 of the Criminal Code that resulted in a number of improper questions being put to the complainant. However, in the 2-1 decision, Rowe and his colleague upheld the acquittal because of what they said were inconsistencies in the trial testimony of the complainant.
“Notwithstanding the serious errors made by the trial judge outlined above, the jury verdict should not be set aside. I have reached this conclusion with reluctance given the unfair manner in which the complainant was dealt with,” wrote Rowe in the Court of Appeal ruling issued this spring.
The Newfoundland Ministry of the Attorney General, in its factum filed with the Supreme Court, is arguing that the majority ruling applied the wrong legal test and placed itself in the jury room.
“In effect, the majority of the Court of Appeal transformed itself from the appellate court to the jury,” writes Iain Hollett, a lawyer with the special prosecutions office of the ministry.
The trial “demonstrated yet again, why section 276 of the Criminal Code was enacted,” writes Hollett. “Despite the unanimous finding that the use of prior sexual history evidence fed the first of the twin myths in a way that was ‘beyond redemption’ and that the decision to exclude evidence rebutting the allegation of recent fabrication “undermined the truth-seeking function of the trial,” the majority of the Newfoundland and Labrador Court of Appeal, refused to order a new trial because C.M.’s [the complainant] impugned credibility "could" give rise to a reasonable doubt,” argues the Crown.
At trial, Justice Robert Stack permitted the defendant to ask about text messages between the complainant and a third party with whom she had an affair. The trial judge also ruled that the complainant could be questioned about the transcript of a private sex tape of her and the accused, for the purposes of determining her “attitude” toward a specific sex act.
The jury was not permitted to see the sex tape, but lengthy and graphic passages were read out from the transcript during the trial.
Rowe, in the majority Court of Appeal judgment, concluded that the trial judge erred in permitting questions about the text messages and sex tape. However, because of the inconsistencies in the testimony of the complainant, there was not a “nexus” between the legal errors and jury acquittal. In dissent, Chief Justice Derek Green concluded that the Crown appeal should be allowed and a new trial ordered.
The Newfoundland Crown argues that by “weighing” the inconsistencies of the complainant’s testimony, the majority did exactly what the Supreme Court said in R. v. Morin that an appellate court could not do — try to predict with certainty what happened in a jury room.
Rosellen Sullivan, who represents S.B., is asking the Supreme Court to uphold the acquittal. The Crown did not meet “the high onus of satisfying the court that the trial judge’s errors might reasonably be thought, in the concrete reality of the case, to have had a material bearing on the acquittal,” says Sullivan in written arguments filed with the court last month.
“Jury decisions must be given considerable deference,” adds Sullivan, a lawyer at Sullivan Breen King in St. John’s.
Rowe will appear next week before the House of Commons Justice and Human Rights committee before he is sworn in as a Supreme Court justice. The Supreme Court is scheduled to hear the appeal in R. v. S.B. in March.
SAN FRANCISCO — There is a lot of uncertainty around the ethics and application of third-party litigation funding, but the reality is many in the legal community want to explore its possibilities about how it can fund increasingly costly legal proceedings.
During a panel discussion yesterday at the Association of Corporate Counsel annual meeting here, Matthew Harrison, investment manager, legal counsel with Bentham IMF, said when he tells people he’s a litigation funder he gets three different responses. “It’s either disgust, admiration or by far the most common is confusion over litigation funding and what it really means.”
Litigation financing has been around in various forms for a long time — contingency fee arrangements and insurance coverage first appeared in the United States in the 1800s. But today, Australia, the U.K. and Germany have taken the lead on third-party litigation funding. It’s also growing in Hong Kong and South Africa, and funders such as Bentham opened an office in Toronto earlier this year.
In some cases, in-house legal departments are looking at third-party financing as a means to bring actions against competitors. But in-house counsel seem wary of third-party funders. They are concerned about sharing privileged information with funders and whether they will interfere with the legal process.
“Today, we are hearing more and more talk of litigation financing and the growth of litigation funding, about firms like Bentham and others for a variety of reasons,” said Theresa Coetzee, vice president and assistant general counsel at Marriott International Inc., who moderated the panel.
Some of those reasons include public policy considerations around access to justice. As well, some companies want to bring “bet the company litigation” but don’t want it to severely impact their company’s ability to do business.
There is also the rise of institutional investors who want to diversify their portfolios.
“We’ve seen a growth in litigation funding for those primary reasons,” said Coetzee.
However, there are ethical issues around third-party litigation funding, such as the independence of the lawyer: Is the legal team going to be influenced by the funder and, therefore, cause ethical considerations for the lawyers? Are there conflicts of interest in terms of whom the funders and lawyers represent?
There is also concern from in-house around whether they would be waiving privilege on all the information provided to the funder during the due diligence process on whether to accept the case.
The list of common subject matters covered by third-party litigation financing includes any sort of commercial case and breach of contract, while the list of things they don’t cover is small, such as defamation and malpractice. ‘We’re not in the business of suing lawyers,” said Harrison.
“Where you see a lot of litigation funding internationally is with international arbitration,” said Coetzee. “Funders really often prefer international arbitration for a variety of reasons — the matters usually go quickly and are high-stakes matters. The arbitrators are often experts in the subject matter and they are enforceable.”
Martha Binks, general counsel and director of legal services for Allstate Insurance Company of Canada, oversees actions brought against Allstate’s insureds.
She said litigation funding comes up in Canada where there are adverse cost consequences and the loser of the litigation is required to pay a portion of the winners’ costs.
“If you are a plaintiff and you don’t want to risk losing your house, you may get adverse cost insurance and it may cover what you’re required to pay a defendant if you are unsuccessful. The other area you find it is for funding for disbursements,” she said.
“Plaintiffs’ counsel may be taking a contingency fee, but who is going to pay for the disbursements along the way?” said Binks. “ You also find it in class actions as a result of the adverse costs consequences.”
Harrison said the rejection rate for third-party litigation financing is very high.
Funders require deep due diligence on a case before they approve it for funding.
“If you’re putting in an average of $1 million per case, you want to make sure the case is legit,” said Harrison.
The funders also hire their own outside counsel to advise on the matter to alert them to any red flags.
When it comes to how much control the funder has, Harrison says monitoring of a matter is done with a “light touch.”
“We check in once a month. We ask to know about major events such as a summary judgment, things like that,” he said. “We as a third-party contractor with the claimant cannot influence the lawyers’ independent professional judgment.”
Bradley Wendel, professor of law at the faculty of Cornell Law School, acknowledges that third-party litigation financing is a rapidly developing area of law and there is a lot of uncertainty.
“I think one of the reasons lawyers approach this with a certain level of trepidation is that it is relatively new, there are gaps and lawyers like certainty,” he said.
He said there is the potential that litigation financing companies can actually perform a “gatekeeping” role in terms of performing due diligence around whether a case should go forward.
“They crawl all over these cases very carefully and hire outside counsel to do due diligence, so when the due diligence process comes back and green-lights funding, that should be a signal that it is a meritorious case and that should re-direct judicial resources to cases that ought to settle,” said Wendel.
“I think there is a net social benefit to financing, but it’s not necessarily in the class action area,” he said.
Wendel rejects the idea that litigation financing will drive up frivolous litigation.
“To me it makes no sense. If the case doesn’t recover proceeds by way of judgment or settlement the funder gets nothing, so why is the funder going to invest in frivolous litigation that makes no sense at all?” he said.
He said litigation financing is really no different in principle than contingency fee financing and liability insurance.
“We’ve accepted those two practices for a long time,” he said, “with the recognition that they may potentially create misalignments of interests.”
Harrison said legal strategy is definitely not something funders can be part of or influence at all.
“We just can’t impact things like that,” he said.
Sexual assualt charges against B.C. man dropped in Colorado, Canadian Press
Prime Minister Justin Trudeau has nominated a new Supreme Court justice from the Atlantic Provinces, despite indicating he might buck convention and choose a justice from elsewhere.
|Malcolm Rowe has been nominated to be the next Supreme Court of Canada justice. Photo credit: David Howells.|
“I am greatly excited to announce the nomination of Mr. Justice Malcolm Rowe, whose remarkable depth of legal experience in criminal, constitutional, and public law will complement the extensive knowledge of the other Supreme Court justices," Trudeau said in a press release.
Rowe will fill a vacancy created when former justice Thomas Cromwell, of Nova Scotia, retired from the bench at the beginning of September.
In the run up to Cromwell’s retirement, Trudeau declined to commit to replacing him with a justice from Atlantic Canada, as convention dictated.
The legal community in the Atlantic Provinces scoffed at the idea and the Atlantic Provinces Trial Lawyers Association filed a court challenge to ensure the convention was respected.
The association will now likely drop its challenge next week, says APTLA’s president, Cynthia Taylor.
“APTLA is very pleased that the prime minister has chosen a judge from Atlantic Canada, which will allow Atlantic Canada to continue to have a voice on the Supreme Court,” says Taylor.
“This is in line with the long standing Canadian convention of having a judge from Atlantic Canada.”
Nicole O’Byrne, an associate professor at University of New Brunswick’s Faculty of Law, says she was “pleasantly surprised” by news about the nomination.
“National institutions such as Parliament, and Senate and the Supreme Court of Canada, gain their legitimacy from representing the constituencies that they serve, and Newfoundland has never had an appointment, they were long overdue,” says O’Byrne.
“So this appointment really marks a huge milestone in Canadian constitutional history, because it’s the first time a judge from Newfoundland and Labrador has been appointed."
O’Byrne said regional representation is part of the “Confederation bargain” that Newfoundland signed up for.
“They deserve to have their voice heard at this level of decision-making, so I’m thrilled,” she says.
Rowe has sat on the Court of Appeal of Newfoundland and Labrador since 2001.
Born in St. John’s, N.L., Rowe attended Osgoode Hall Law School before he was called to the bar.
He became clerk of the Executive Council and Secretary to Cabinet in the provincial government of Newfoundland and Labrador in 1996. He was then appointed to the province’s Supreme Court, Trial Division in 1999 before he ascended to the Court of Appeal for Newfoundland and Labrador.
Rowe’s nomination was also the first under the federal government’s new Supreme Court justice selection process, which included the creation of a new advisory board that would recommend potential judges.
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