News Ruling raises concerns about efficient management of cases

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• mARCH 14 , 2014
THE LAWYERS WEEKLY
News
Lawyers looking at sea change in
ownership structure
1
Ruling raises concerns about
efficient management of cases
Prothonotaries get big pay and
pension hike
1
Judges can’t sit in hearings outside their jurisdiction, appeal court rules
Ruling raises concerns about
efficient case management
2
Alberta latest to lose a trafficrelated debt case
3
Contents
News
LSUC benchers to rule on Trinity
Western accreditation
3
Appeal Court makes rare change
in libel case
4
Report questions independence
of adjudicators
5
Focus
BUSINESS LAW
Tax Court rules against deducting
legal fees
10
Boilerplate pleading to circumvent
caps seen as norm
11
A not-for-profit spin on the
oppression remedy
12
Blowing the whistle on offshore
tax evaders
13
INTELLECTUAL PROPERTY
Trademark registration begins at
home
14
Court breaks with apportionment
in IP award
15
Business & Careers
It’s important to keep calm when
the client is not
20
A blueprint for growing your
boutique
ANNOUNCEMENTS
21
21
21
19
16
4
CAREERS CLASSIFIED ADS DIGEST NAMES IN THE NEWS Kim Arnott
A British Columbia Court of
Appeal ruling that judges there
may only preside over hearings
that take place within the province offers a new challenge in the
quest for efficient management
of national class action cases,
according to experts in the field.
The ruling (Endean v. Canadian Red Cross Society [2014]
B.C.J. No. 254) is the latest to
come out of the 1999 class action
settlement agreement being
supervised by superior judges in
Ontario, B.C. and Quebec in
relation to claims from individuals who contracted hepatitis C
infections from the Canadian
blood supply.
In a unanimous decision, the
B.C. Court of Appeal overturned
a lower court judgment allowing
a B.C. Supreme Court judge to
sit in a joint hearing in an
Alberta courtroom to concurrently rule on motions related to
the settlement agreement.
Justice Richard Goepel found
that common law prohibits
domestic courts from sitting
outside their territorial boundaries, and added that there is no
authority to turn to the justification of inherent jurisdiction to
allow the practice.
That justification provided the
basis of rulings in both British
Columbia (Endean v. Canadian
Red Cross Society [2013] B.C.J.
No. 1304) and Ontario (Parsons
v. Canadian Red Cross Society
[2013] O.J. No. 2343) allowing
hearings outside of the province
provided the court had “personal
and subject-matter jurisdiction
over the parties and the issues in
the proceeding.” Approval was
also given in a Quebec decision.
The rulings were appealed in
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There is an important
point of legal principle
out there and it’s likely
to create a significant
obstacle to ongoing
efforts to improve
the co-ordination of
national class actions
in Canada.
Chris Naudie
Osler, Hoskin and Harcourt
both B.C. and Ontario by the
provincial attorneys general.
The Ontario appeal is scheduled
to be argued in September.
“The question was whether
traditional principles should
bend in light of modern needs,”
said Chris Naudie, who co-chairs
the national class action specialty group at Osler, Hoskin and
Harcourt. While the lower courts
ruled that they should, the B.C.
Court of Appeal decision found
that longstanding common law
principles should be respected,
barring legislative change.
Although the decision concluded that B.C. judges cannot
conduct hearings that take place
outside the province, Justice
Goepel’s ruling added that
judges who aren’t personally
present in the province may still
preside over hearings through
telephone, video conference or
other communication medium.
He also permitted judicial participation in out-of-province
concurrent hearings with regard
to the settlement agreement
under consideration, provided
the hearing of the application in
the B.C. proceeding is conducted
in a B.C. courtroom.
However, that qualification
has some observers wondering
precisely what is required to
determine that a hearing has
taken place in British Columbia.
“It seems to me that if the
judge and the witnesses and
everybody else is in Alberta say,
all you really need in B.C. is the
court clerk and a microphone so
people in the audience can hear
it in the open court principle and
you’re good,” said Thompson
Rivers University law professor
Craig Jones.
While the decision may not
have much practical impact on
the current administration of
cases, which typically already
involve a link to a live courtroom, it is still noteworthy, said
Naudie.
“There is an important point of
legal principle out there and it’s
likely to create a significant
obstacle to ongoing efforts to
improve the co-ordination of
national class actions in Canada,” he said.
Despite the Court of Appeal’s
invitation to the legislature to
consider the issue, there is little
expectation that legislators will
see this as an important concern
for legal reform.
“I think it would be helpful to
have a comprehensive review of
the issues but I just don’t see this
being a big priority for government or legislators,” said Randy
Sutton, a partner at Norton Rose
Fulbright.
He believes significant change
will have to start with the country’s law reform agencies. “That
would allow for one set of general principles to be developed
and then the legislatures could
deal with them.”
The issue is on the radar of the
Ontario Law Commission, which
is undertaking a class action
project that will consider “the
unique challenges of national
class actions,” according to LCO
counsel in residence Judy
Mungovan.
“This B.C. Court of Appeal
decision and Ontario’s 2013
Superior Court decision on the
same issue will be looked at as
part of this review,” Mungovan
said in a written statement
e-mailed to The Lawyers Weekly.
“The LCO is pleased that technology, such as video conferencing, is being considered and
more frequently used to mitigate
access to justice challenges.”
Jones says the need for plaintiffs to litigate in a multitude of
jurisdictions as a result of the
inability to create an effective
national class action regime
clearly has access to justice ramifications.
“If class actions work because
they give an economy of scale to
plaintiffs that can match or at
least rival that of defendants,
and I believe that’s why class
actions exist, then every time
you force the class to subdivide,
either on issues or jurisdictionally, you lose part of that economy of scale,” he said. “You are
discouraging suits by disallowing
optimal aggregation of the class
and that is an access to justice
issue.
“We have to think of mass litigation as a new kind of justice,
and I’m always disappointed
when courts consider themselves
hidebound by rules that were
developed in the mists of time.”
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