Common Law Students with Disabilities: Accommodation Concerns, Insights, and Recommendations June 2013 The Centre for Equity and Human Rights (CEHR), & the Faculty of Law, University of Ottawa,

Common Law Students with Disabilities:
Accommodation Concerns, Insights, and Recommendations
June 2013
The Centre for Equity and Human Rights (CEHR), a Student Federation service, is attentive to ensure that
differences among students are not treated in ways that produce direct or indirect forms of
discrimination. Our work predominantly entails matters related to the Ontario Human Rights Code. Our
Commitment to students requires that CEHR works in full compliance with the spirit and intent of the
Ontario Human Rights Commission and provisions of the Ontario Human Rights Code.
Purpose:
The Centre demonstrates its strong commitment to the betterment of our campus by our resolve to
engage in information sharing in hope to prevent human rights complaints on campus. Upon receipt of
comparable complaints within a department and/or an identified potential systemic concern (for
example: identified policy, procedure, or normative practice leaving a group of individuals at a
disadvantage), CEHR normatively informs numerous persons in authority including Deans, Vice Deans,
and/or Program Directors in hope that the identified potential barriers will be examined and redressed if
warranted.
The purpose of this document is to inform the Faculty of Law, Common Law Section, of students’
expressed concerns regarding their experience of navigating their disability related accommodation
requests and associated appeals. The vast majority of CEHR formal or informal cases occurring within
the Common Law section of the Faculty of Law, University of Ottawa, are reported to pertain to the
prohibited ground disability.
It is our hope that, after reading this document, the Faculty of Law, Common Law Section will examine
their accommodation practices, policies, procedures and verify the expressed concerns as outlined
below and address promptly identified barriers if justified.
The Duty to Accommodate Students with Disabilities
Post-secondary institutions including law schools and bar admission programs have an obligation to
provide appropriate accommodation for students who have disabilities.1
The Ontario Human Rights
1
Ontario Human Rights Commission (OHRC), Guidelines on Accessible Education (September 2004), in “Scope of
Application”, under “Duty to accommodate disability”, available online at www.ohrc.on.ca2
Commission “reaffirms the right of students with disabilities to full participation and integration [within
an accessible post-secondary] education system”.
2
In order to “face the same duties and requirements as everyone else with dignity and without
impediment”, the provision of the appropriate accommodations ensures that students with disabilities
have equal opportunities in their educational settings.
3
Identified Barriers:
Case management has led the Centre to identify several recurring barriers in Common Law students’
allegations of discrimination: Accommodation Process; Examinations Committee Appeal Decisions –
Contextual Consideration of Accommodation Complaints; and Rejection of Consultation Requests with
Upper Management.
Accommodation Process:
The Ontario Human Rights Commission states that, “Information [note: including medical information]
should be disclosed to the accommodation provider only as it pertains to the need for accommodation
and any restrictions or limitations. Documentation supporting the need for a particular accommodation
should be provided only to those who need to be aware of the information. […] Disclosure to faculty or
staff of the post-secondary institution should be on a need-to-know basis only, and at the choice of the
student.”4
The Centre advances that confidentiality of medical information is an important consideration for the
Faculty of Law if undertaking an examination of the Common Law Section accommodation process.
Access Services has the objective of ensuring optimal learning conditions to provide a student who has a
disability or a bona fide medical condition with an equal opportunity to demonstrate their academic
mastery and competencies and ultimately achieve their academic and professional goals.
Normative practice dictates that University of Ottawa students, who have a disability and require
accommodations measures, register with Access Services. Once registered with Access Services, a
Learning Specialist obtains pertinent confidential medical documentation delineating functional
limitations. Based on medical documentation the Learning Specialist develops an individualized
accommodation plan, in collaboration with the student. The accommodation plan describes appropriate
adaptive measures and supports needed, to ensure that the student is provided with an equal
opportunity to succeed within the academic setting. It is our understanding that throughout this
2
OHRC, The Opportunity to Succeed: Achieving Barrier-free Education for Students with Disabilities Consultation
Report, (October 2003) under “Human rights law and policy in Ontario”, available online at www.ohrc.on.ca
3
OHRC, Policy and Guidelines on Disability and the Duty to Accommodate (March 2001), under “4.1.3 Integration
and full participation” and “4.3 Most appropriate accommodation”, available online at www.ohrc.on.ca
4
OHRC, The Opportunity to Succeed, under “Post-secondary education” 3
process, as per best practices identified by the Ontario Human Rights Commission,5
Access Services
adheres to the provision of accommodation with dignity, which includes the individual’s own
participation in the process. Access Services safeguards all confidential medical documentation
(including diagnosis) leading to the identification and development of needed adaptive measures. Solely
information pertaining to a student’s adaptive measures and supports is shared with the individual or
service providing the accommodation (not one’s diagnosis).
Distinctively the University of Ottawa’s Common Law Section manages accommodations in a somewhat
different fashion. From our understanding, students who have documented disabilities and seek
accommodations are required to meet with the Faculty’s Equity and Academic Success Manager (the
“Manager”). In reading the Common Law Section Student Services website, one understands that while
students may choose to or not to register with Access Services, all students seeking accommodations
should meet with the Manager.6
Case management informs our Centre that this practice can incite
students to coordinate their accommodations solely with the Faculty of Law, and as such provide
detailed medical documentation directly to the Faculty. Further, even though students are duly
registered with Access Services they may still provide additional medical documentation directly to the
Faculty, whereas normative practices would suggest continued involvement of Access Services to clarify
requests as needed. Certainly, the guidelines do not convey to students the important role Access
Services can play in the accommodation process.
In principle, the idea of having one Office within the Faculty of Law, whose objective is to coordinate
accommodations via specialized personnel, is sound. However, the decision to accept or deny a request
for accommodation including for example the request for deferrals, extensions, or excused absences can
necessitate that the Manager bring forth students’ requests to the attention of the Assistant Dean,
Academic Affairs. Though the Faculty has the responsibility to approve or deny leave of absence
requests, case management informs our Centre that at times confidential medical documentation
unrelated to a student’s accommodation plan was requested and in certain cases was shared with the
Assistant Dean, Academic Affairs. The additional medical information requested may not be pertinent
to the duty to accommodate the student where adaptive measures and supports are already identified
by Access Services.
Another concern brought to the Centre’s attention is that a student’s medical documentation is often
placed in their academic file. To the contrary and as noted above, Access Services Learning Specialists or
the student exclusively provides information pertaining to the student’s adaptive measures and
supports to the attention of the individual or service providing the accommodation (no diagnosis
provided and substantive documentation is secured). Further, a student registered with Access Services
can rest assured that their confidential medical documentation will be appropriately housed within this
service (not within their academic file).
5
OHRC, Guidelines on Accessible Education, under “Principles of accommodation”
6
University of Ottawa Faculty of Law, Common Law Section, “Long term disability or medical condition”, last
modified December 15th, 2009, http://www.commonlaw.uottawa.ca/en/student-services/equity-and-academicsuccess/long-term-disability-or-medical-condition.html4
As such, past cases demonstrate that accommodation requests brought to the attention of the Assistant
Dean, Academic Assistant, can lead this authority to: request additional medical documentation without
delineating the need for specific accommodation related information; deny sought accommodations by
simply stating that medical documentation provided is not sufficient regardless of a student being
registered in the above-noted service or services (Equity and Academic Success Service; Access Services)
where medical documentation is appropriately housed; or deny sought accommodations without
seeking further clarification. Each of these practices can lead to medical disclosures that are not
relatable to a student’s accommodation including providing one’s diagnosis.
Unfortunately, some still regard academic accommodations as lowering standards or favouritism. Case
management informs CEHR that this is especially the case for students with invisible disabilities. A
Faculty’s access to confidential medical documentation, especially if it is placed in a student’s academic
file, can lead to perceived or real bias and discrimination. The Commission notes that students with
disabilities continue to face negative attitudes and stereotypes in the post-secondary system.7
Lack of
knowledge about and sensitivity to disability issues on the part of individuals in a position of authority,
professors, staff and students can make it difficult for students with disabilities to access educational
services equally. Students expressed to CEHR feeling that the need to either navigate and/or continually
justify their accommodation needs led to tangible difficulties with coordination and communication with
the appropriate decisional authorities when postulating their accommodation requests.
The Centre respectfully advances that the Common Law Section’s long term accommodation procedures
as practiced should be revised as there is a potential to mistakenly associate the request for
accommodation with further disclosure of unrelated medical information. In fact, the Centre would
advance that within her role as Manager, Jessica Simon should have the authority to assess the validity
of a students’ request for accommodation based on medical documentation provided to her or
information provided by Access Services, and, in accordance with the identified adaptive needs,
coordinate with professors or advance the request for deferrals, extensions, and excused absence for
Faculty approval. Noting that it is the Manager that strikes an accommodation agreement on behalf of
the students, the Manager’s expertise should inform the Faculty of a valid request leaving the Faculty to
accept or deny the request. In our opinion, this student-identified procedural limitation needs to be
redressed.
In addition, it would be important to ensure students’ academic files do not contain confidential medical
documentation or any other accommodation related information, whether students in question are
registered with Access Services or not.
Case management also informs our Centre of the importance for all professorial and administrative staff
to know to refer students to the Equity and Academic Success Manager whenever they express difficulty
meeting program requirements for medical reasons. Whenever professors or staff members are
concerned with a student’s expressed well-being, this concern should be shared with the student along
with a referral to the Manager. University of Ottawa Regulation 9.5 (Justification of absence from an
examination or of late submission of assignments) ensures students are not penalized when unable to
7
OHRC, Guidelines on Accessible Education, in “Principles of accommodation”, under “Step 2: Removing barriers”5
complete examinations or assignments namely due to medical conditions. It is also important that
students are informed of options available to them to ensure they are not held to continue meeting
their academic obligations when their health prevents them from doing so.
As such, the Centre recommends all students seeking adaptive measures be referred to register with
Access Services and that confidential medical documentation including their diagnosis is appropriately
housed within this service. As well, CEHR recommends that the Faculty of Law, Common Law Section
institutes and communicates to staff and faculty confidentiality guidelines with respect to students with
disabilities, as well as directives on the importance to connect students to the Manager should it
become apparent that their health prevents them from meeting requirements.
Examinations Committee Appeal Decisions and other Committees – Contextual Consideration of
Accommodation Complaints
The Ontario Human Rights Commission states that the prevention and removal of barriers means
persons with disabilities should be able to access their environment and face the same duties and
requirements as everyone else with dignity and without impediment. 8
The Commission also
recommends prompt resolutions to disputes, should they arise.
9
However, case management informs the Centre that the Examinations Committee decisions often
demonstrate an unwillingness to contextualize appeals based on the infringement of disability-related
adaptive measures within a human rights scope. The Centre respectfully advances that the
Examinations Committee often offers little consideration of disability issues imbedded within disability
related appeals brought before it. Further, it is our observation that the majority of the Common Law
Section’s Examinations Committee’s unfavourable decisions in these matters are redressed by the
Senate Appeal Committee when brought at this higher level of appeal.
Similarly, the Student Appeal Centre, a Student Federation service, shares:
“From the Student Appeal Centre perspective we found that many situations which would be handled
informally in other faculties, including the Droit Civil Section, could not be resolved in a similar manner in
the Common Law Section. As a result, students must go through the Examinations Committee for
consideration engaging them in a long and formal process. The decisions rendered by the Examinations
Committee often provide very little or no grounds. Furthermore, we have seen students whose appeals
were denied despite submitting valid medical documentation within the deadlines prescribed by
university regulations. In one case, the Committee requested medical documentation even though no
medical grounds were claimed by the student. In another, academic regulations were imposed strictly
without mention of the student's medical documentation. This lack of consideration forces students to
appeal to the Senate Appeals Committee, should they want their matter resolved, hence delaying the
process even further.”
8
OHRC, Policy on Disability, under “4.1.3 Integration and full participation”
9
OHRC, Guidelines on accessible education, in “Accommodation process” under “Dispute resolution”6
Mireille Gervais, Director, Student Appeal Centre, SFUO, statement provided May 26th, 2013
In agreement with the Student Appeal Centre, the Centre has found that the Common Law Section
appeal process is cumbersome for students with disabilities who often bear the burden of providing
unnecessary additional medical documentation despite being registered with the Faculty’s Equity and
Academic Success Service and/or Access Services. In addition, the Examinations Committee often
appears to discount pertinent accommodation related information when students are advancing
disability related appeals. Seeing as the Examinations Committee rejected all disability-related appeals
witnessed by our Centre, and that the majority of the appeals were granted at least in part when
brought to the Senate Appeals Committee, our Centre is concerned that some of the Examinations
Committee’s members might regard academic accommodations as lowering standards.
The Commission informs us that dispute resolution procedures for accommodation requests should
comply with the Code.10 The Centre is of the opinion that refusal to consider the lack of provision of
accommodation during an appeal process can perpetuate the experience of discrimination. As such, it is
important that all Common Law Section committees with decisional powers (namely the Examinations
or the Readmission Committee) consider pertinent disability related complaints within the scope of a
student appeal. Without fair consideration, decisions rendered by Committees can in and of themselves
leave the University proper liable. Case management also informs us that expulsion/readmission
policies can also be rigidly applied without taking into account a student’s individual circumstances.
As such, the Centre recommends that the Faculty of Law, Common Law Section examine appeal related
practices and develop and implement where warranted a fair dispute resolution procedure that ensures
compliance with the Code and the Commission’s Disability Policy, as well as the Opportunity to Succeed
consultation report and Guidelines on accessible education.
Rejection of Consultation Requests with Upper Management
The Common Law Section had recently announced the appointment of Nathalie Des Rosiers as Dean of
the Faculty of Law, Common Law Section, effective July 1, 2013.
In light of this new appointment, it is our hope that the Common Law Section will welcome the
opportunity to consult with students with disabilities including their representatives upon request.
CEHR strongly believes that it is to our advantage to work together to redress tangible identified
barriers. Students report that the refusal to grant accommodations, or the application of academic
regulations without consideration of their disability-related needs, can have considerable implications
for their academic life and financial situation.
10 OHRC, The Opportunity to Succeed, in “Appendix A: Summary of actions required” under “Post-Secondary
Institutions”7
Though not intentionally, past refusals of requests to meet a student with a disability to discuss their
concerns can indicate a disinterest in considering the perspectives and concerns of students with
disabilities.
CEHR recommends that at all levels, the Faculty of Law, Common Law Section examines the broader
context in which discrimination can occur including redressing the practice to deny meeting with a
student to discuss their disability related concerns if warranted.
In Conclusion:
CEHR will continue to demonstrate our strong commitment to the betterment of our campus by our
resolve to engage in fruitful discussions to advance our concerns, many of which are shared with the
Student Appeal Centre.
It is our hope that the Common Law Section will examine the practices, policies, procedures identified as
being problematic by students with disabilities, and do that which is necessary to redress all verified
concerns where necessary.

Privacy Commissioner stresses significance of online reputation and business accountability in digital age.

Privacy Commissioner stresses significance of online reputation and business accountability in digital age

Annual report tells tales of rental laptops that spied on users, the response to a teen smeared by a social network imposter and a dating site that left sensitive health data vulnerable.
Ottawa, June 6, 2013 — Privacy Commissioner Jennifer Stoddart today released the Office of the Privacy Commissioner’s (OPC) annual report on the Personal Information Protection and Electronic Documents Act (PIPEDA) for 2012, which details investigations affecting individual online reputation and the growing importance of organizational accountability.  This is the Commissioner’s last PIPEDA annual report before the end of her mandate and it underlines the need for changes to the law to bring it up to speed with today’s rapidly changing, digitally driven times.
“As in previous years, our annual report outlines some significant achievements as investigations led to improved privacy practices among businesses,” said Commissioner Stoddart. “Such changes, however, often came only after long investigative and follow-up processes, and therefore at significant costs. Canadians would be better served by a law that motivates organizations to put privacy considerations up front, rather than the current situation where we’re left to trigger a mop-up after privacy is violated.”

Leering laptops

The report details the outcome of a Commissioner-initiated complaint against a Canadian franchisee of rent-to-own company Aaron’s Inc. “Detective Mode” software was installed onto its rented laptops, enabling the collection of data, including key strokes, screen shots and web cam photos without user knowledge.
While installing the software was intended to recover lost or stolen laptops, the OPC found that the extreme measure wasn’t justified, given the egregious and disproportionate loss of privacy for its clients. The franchisee agreed to delete what the software collected, and the company committed to never again using this type of tool.   

Facebook fakery

This year’s report also includes the story of a teen whose reputation was imperiled by a fake Facebook account being set up in her name. She was not a Facebook member, but many of her real life friends were. They “friended” the impostor account and then received a barrage of inappropriate comments.
The teen’s mother complained to the OPC and demanded Facebook delete the account.  Upon determining the account was indeed a fake, the company promptly deleted it.  The teen’s reputation though remained at risk as those who had been “friended” by the account were not notified of it being a fake.   As a result following negotiations with the OPC, Facebook agreed to implement a new process moving forward to help non-users notify individuals “friended” by imposter accounts.

Information on singles with STDs unprotected

The report also details our investigation into complaints by members of a dating web site for people with sexually transmitted diseases called PositiveSingles.com.  They alleged that, unbeknownst to them, their profiles, including personal information detailing their individual health status, were stored in a database accessible by a wider network of affiliated sites.
The investigation concluded that PositiveSingles and its parent company, SuccessfulMatch, failed to openly and clearly explain to prospective members how and to whom their personal information would be visible and disclosed. SuccessfulMatch then made changes to the web site to make its information handling practices more transparent, including informing prospective members of the broad visibility of profiles at the point of registration.
Overall, 2012 saw 220 complaints accepted by the OPC, down from 281 the previous year. The OPC also completed 145 formal investigations in 2012, marking a 21-percent increase from the year before, while also realising a 12-percent reduction in the time it took to resolve formal investigations.

About the OPC

The Privacy Commissioner of Canada is mandated by Parliament to act as an ombudsman and guardian of privacy in Canada. The Commissioner enforces two federal laws for the protection of personal information: the Privacy Act, which applies to the federal public sector; and the Personal Information Protection and Electronic Documents Act (PIPEDA), which applies to organizations engaged in commercial activities in the Atlantic provinces, Ontario, Manitoba, Saskatchewan and the Territories. Quebec, Alberta and British Columbia each has its own law covering the private sector. Even in these provinces, PIPEDA continues to apply to the federally regulated private sector and to personal information in interprovincial and international transactions.

- 30 -

For more information (media only), please contact:
Scott Hutchinson
Office of the Privacy Commissioner of Canada
 

News ReleaseData protection authorities urge Google to address Google Glass concerns Privacy Commissioner of Canada

News Release

Data protection authorities urge Google to address Google Glass concerns

Ottawa, June 18, 2013 — Privacy Commissioner of Canada Jennifer Stoddart and 36 of her  provincial and international counterparts have issued a joint letter urging Google Inc. to respond to questions and concerns related to Google Glass, the company’s new Internet-connected glasses.
“Google Glass raises significant privacy issues and it is disappointing that Google has not engaged more meaningfully with data protection authorities about this technology.  We are urging Google to take part in a real dialogue with us about Google Glass,” says Commissioner Stoddart.
The letter is as follows:
Mr. Larry Page
Chief Executive Officer
Google Inc.
1600 Amphitheatre Parkway
Mountain View, California
USA   94043
Dear Mr. Page:
We are writing to you as data protection authorities to raise questions from a privacy perspective about the development of Google Glass, a type of wearable computing in the form of glasses¹, which is currently in beta testing and not yet available to the general public.
As you have undoubtedly noticed, Google Glass has been the subject of many articles that have raised concerns about the obvious, and perhaps less obvious, privacy implications of a device that can be worn by an individual and used to film and record audio of other people.  Fears of ubiquitous surveillance of individuals by other individuals, whether through such recordings or through other applications currently being developed, have been raised.  Questions about Google’s collection of such data and what it means in terms of Google’s revamped privacy policy have also started to appear.
As you may recall, data protection authorities have long emphasized the need for organizations to build privacy into the development of products and services before they are launched.  Many of us have also encouraged organizations to consult in a meaningful way with our respective offices.
To date, what information we have about Google Glass, how it operates, how it could be used, and how Google might make use of the data collected via Glass largely comes from media reports, which contain a great deal of speculation, as well as Google’s own publicizing of the device.
For example, our understanding is that during the beta testing of the product, Google has put in place extensive guidelines for software developers to follow in building applications for Glass².  These limits appear to be largely related to advertising within Glass.  If this is indeed the case, we think this is a positive first step in identifying privacy issues, but it is only a first step and the only one we are aware of.
We understand that other companies are developing similar products, but you are a leader in this area, the first to test your product “in the wild” so to speak, and the first to confront the ethical issues that such a product entails. To date, however, most of the data protection authorities listed below have not been approached by your company to discuss any of these issues in detail. 
For our part, we would strongly urge Google to engage in a real dialogue with data protection authorities about Glass.   
The questions we would like to raise include:

• How does Google Glass comply with data protection laws?
• What are the privacy safeguards Google and application developers are putting in place?
• What information does Google collect via Glass and what information is shared with third parties, including application developers?
• How does Google intend to use this information?
• While we understand that Google has decided not to include facial recognition in Glass, how does Google intend to address the specific issues around facial recognition in the future?
• Is Google doing anything about the broader social and ethical issues raised by such a product, for example, the surreptitious collection of information about other individuals?
• Has Google undertaken any privacy risk assessment the outcomes of which it would be willing to share?
• Would Google be willing to demonstrate the device to our offices and allow any interested data protection authorities to test it?

We are aware that these questions relate to issues that fall squarely within our purview as data protection commissioners, as well as to other broader, ethical issues that arise from wearable computing.  Nevertheless, we feel it is important for us to raise all of these concerns.  We would be very interested in hearing about the privacy implications of this new product and the steps you are taking to ensure that, as you move forward with Google Glass, individuals’ privacy rights are respected around the world.  We look forward to responses to these questions and to a meeting to discuss the privacy issues raised by Google Glass.
Sincerely,
Original signed by
Jennifer Stoddart
Privacy Commissioner of Canada
Original signed by
Jacob Kohnstamm
Chairman of the Article 29 Working Party, on behalf of the members of the Article 29 Working Party
Original signed by
Timothy Pilgrim
Privacy Commissioner of Australia
Original signed by
Marie Shroff
Privacy Commissioner, New Zealand
Original signed by
Alfonso Oñate Laborde
Secretary for Data Protection, Federal Institute for Access to Information and Data Protection, Mexico
Original signed by
Rivki Dvash
Head of the Israeli Law, Information and Technology Authority
Original signed by
Hanspeter Thür
Swiss Federal Data Protection and Information Commissioner
Original signed by
Jill Clayton
Information and Privacy Commissioner of Alberta
Original signed by
Jean Chartier
President, Commission d’accès à l’information du Québec
Original signed by
Elizabeth Denham
Information and Privacy Commissioner of British Columbia

[1] Google Glass includes an embedded camera, microphone and GPS, with access to the Internet.  The Android Operating System powers Google Glass, and third-party applications are currently being built for Glass.  To access Glass, a user needs a Google account.

[2] https://developers.google.com/glass/overview

Message from Facebook's White Hat Program

Message from Facebook's White Hat Program






At Facebook, we take people’s privacy seriously, and we strive to protect people’s information to the very best of our ability. We implement many safeguards, hire the brightest engineers and train them to ensure we have only high-quality code behind the scenes of your Facebook experiences. We even have teams that focus exclusively on preventing and fixing privacy-related technical issues before they affect you.






Even with a strong team, no company can ensure 100% prevention of bugs, and in rare cases we don’t discover a problem until it has already affected a person’s account. This is one of the reasons we also have a White Hat program to collaborate with external security researchers and help us ensure that we maintain the highest security standards for our users.






We recently received a report to our White Hat program regarding a bug that may have allowed some of a person’s contact information (email or phone number) to be accessed by people who either had some contact information about that person or some connection to them.






Describing what caused the bug can get pretty technical, but we want to explain how it happened. When people upload their contact lists or address books to Facebook, we try to match that data with the contact information of other people on Facebook in order to generate friend recommendations. For example, we don’t want to recommend that people invite contacts to join Facebook if those contacts are already on Facebook; instead, we want to recommend that they invite those contacts to be their friends on Facebook.






Because of the bug, some of the information used to make friend recommendations and reduce the number of invitations we send was inadvertently stored in association with people’s contact information as part of their account on Facebook. As a result, if a person went to download an archive of their Facebook account through our Download Your Information (DYI) tool, they may have been provided with additional email addresses or telephone numbers for their contacts or people with whom they have some connection. This contact information was provided by other people on Facebook and was not necessarily accurate, but was inadvertently included with the contacts of the person using the DYI tool.






After review and confirmation of the bug by our security team, we immediately disabled the DYI tool to fix the problem and were able to turn the tool back on the next day once we were satisfied that the problem had been fixed.






We've concluded that approximately 6 million Facebook users had email addresses or telephone numbers shared. There were other email addresses or telephone numbers included in the downloads, but they were not connected to any Facebook users or even names of individuals. For almost all of the email addresses or telephone numbers impacted, each individual email address or telephone number was only included in a download once or twice. This means, in almost all cases, an email address or telephone number was only exposed to one person. Additionally, no other types of personal or financial information were included and only people on Facebook – not developers or advertisers – have access to the DYI tool.






We currently have no evidence that this bug has been exploited maliciously and we have not received complaints from users or seen anomalous behavior on the tool or site to suggest wrongdoing. Although the practical impact of this bug is likely to be minimal since any email address or phone number that was shared was shared with people who already had some of that contact information anyway, or who had some connection to one another, it's still something we're upset and embarrassed by, and we'll work doubly hard to make sure nothing like this happens again. Your trust is the most important asset we have, and we are committed to improving our safety procedures and keeping your information safe and secure.






We have already notified our regulators in the US, Canada and Europe, and we are in the process of notifying affected users via email.






We appreciate the security researcher's report to our White Hat program, and have paid out a bug bounty to thank him for his efforts.

Those are the new colours of Stephen Harper's plane.

What's more Canadian than red, white an...ahem blue?



Those are the new colours of Stephen Harper's plane.

As explained by the Toronto Star, the Royal Canadian Air Force CC-150 Polaris — the plane that transports the prime minister, the governor general, dignitaries and sometimes military personnel — has finally gotten its new paint job.



The new design includes Canadian symbols like the national flag, Canada’s coat of arms, and the RCAF logo.

Phrases from the national anthem — “True North Strong and Free” and “Une épopée des plus brilliants exploits” — appear in italicized script under the cockpit window.

The words, “Government of Canada, Gouvernement du Canada,” separated by a small maple leaf, appear along the fuselage above the passenger windows.




The makeover has been debated for some time.

In 2011, CBC reported that the prime minister and defence minister were involved in a "tug-of-war" about changing the jet's colour from it's traditional military grey. The defence department argued that anything but grey would be too visible "whenever the passenger jet is sent on troop and cargo missions to risky locales."

But alas, the PMO gets what it wants.

The estimated price tag for the repaint was about $50,000.

W

Some have suggested that this is another example of the Tories trying to re-brand Canada as Conservative.

"The colours of the plane, the whole detailing is clearly patterned on the Conservative Party," NDP leader Thomas Mulcair told reporters on Friday morning.

"I can tell you this, that when we form government in 2015 we will not be painting that plane orange."

Last year, Liberal MP Carolyn Bennett suggested that there's been a pattern to this.

"It's the branding of the websites and how blue is everywhere now and all this subliminal messaging," she told the Huffington Post.

"I mean to the point that they have gotten rid of all the red and green lights at Christmas time and we have blue and orange lights. What's with blue and orange Christmas lights all over Parliament Hill? There has been a serious effort in rebranding Canada blue."

And remember, earlier this year when, on a photograph to promote Economic Action Plan 2013, Ontario’s commuter trains was conveniently changed from green to Conservative Party blue.

Could Mulcair and Bennett actually be on to something?

Harper will be on his red, white and blue plane next week, when he travels to Europe for stops in London, Paris, Dublin and to the G8 summit in Northern Ireland.

The Supreme Court of Canada will announce Thursday whether it will hear an appeal in Toronto Mayor Rob Ford’s conflict-of-interest case.

The Supreme Court of Canada will announce Thursday whether it will hear an appeal in Toronto Mayor Rob Ford’s conflict-of-interest case.


Clayton Ruby, the lawyer who led the charge against Mr. Ford in the case that nearly ousted him from office, filed his leave to appeal in mid-March, arguing that a lower-court ruling hinged on a technicality and the matter is of “national importance.”










The conflict-of-interest case centred on a vote in February of last year by Mr. Ford to let himself off the hook for failing to repay $3,150 in improper donations to the Rob Ford Football Foundation, which provides football equipment for underprivileged high schools. An earlier investigation by the city’s integrity commissioner found the donations came from lobbyists and a corporation doing business with the city and recommended Mr. Ford be asked to repay the money himself. Council agreed, voting to impose the penalty in August, 2010, a few months before Mr. Ford swept to the city’s top job.Mr. Ruby, who represented Paul Magder, the citizen who filed the conflict complaint against the mayor, said at the time he was compelled to seek leave to appeal because “holding politicians to account is a matter of importance to all Canadians.”


In November, an Ontario Superior Court judge ordered the mayor removed from office, ruling Mr. Ford violated the Municipal Conflict of Interest Act by speaking to and voting on the item.


The Ontario Divisional Court overturned that ruling in January. A three-judge panel ruled council did not have the authority to ask the mayor to pay back the funds.


Mr. Ruby admitted in March that having such an application heard by the Supreme Court is a long shot – about 70 are taken each year out of approximately 1,000 applications.

Amid the failure of the RCMP’s specialized corporate crime unit to notch a single major corporate criminal conviction, Canada’s largest securities regulator has forged ahead to create a serious offences unit of its own to handle complex criminal cases destined for the courts, the National Post has learned. Sources confirmed that the Ontario Securities Commission (OSC) has partnered principally with the Ontario Provincial Police (OPP), and is currently in discussions with Metro Toronto police and the RCMP, to establish a new unit that will investigate and prosecute boiler room operations, such as fraud and market manipulation and other illegal activities, many of which are associated with organized crime.

Amid the failure of the RCMP’s specialized corporate crime unit to notch a single major corporate criminal conviction, Canada’s largest securities regulator has forged ahead to create a serious offences unit of its own to handle complex criminal cases destined for the courts, the National Post has learned.
Sources confirmed that the Ontario Securities Commission (OSC) has partnered principally with the Ontario Provincial Police (OPP), and is currently in discussions with Metro Toronto police and the RCMP, to establish a new unit that will investigate and prosecute boiler room operations, such as fraud and market manipulation and other illegal activities, many of which are associated with organized crime.



The OSC has hived off a group of 20 staff members, many of these former police officers and ex-Crown prosecutors, to create the serious offences unit. This group, eight of which have received special constable status from the OPP, operates on a separate floor with a computer network walled off from the rest of the regulator’s staff to preserve the proper chain of command and evidence. The members, who just completed a weeklong training session, have assorted weapons in their arsenal to pursue miscreants, including the ability to employ search warrants, wiretapping and undercover surveillance, which are allowed by the Criminal Code as part of their work in conjunction with the police.
“We recognize the serious harm that those involved in securities fraud offences perpetrate against retail investors,” Tom Atkinson, director of enforcement at the OSC told the Post in an email. “As such, we’re focused on bringing more cases before the Ontario Court of Justice where sanctions, including fines and jail sentences, are expected to have a greater deterrent effect.”
Added a source familiar with the discussions, who asked not to be named: “There’s a perception that there are cases that are not being treated criminally and are not being handled criminally and this shows they are prepared to do it.”
The OSC, which has jurisdiction over the Toronto Stock Exchange and the TSX Venture Exchange, is the dominant securities watchdog in Canada and its decisions affect most of the country’s mutual funds, pension funds and brokerages. However, the OSC, like most of the other 12 provincial and territorial securities regulators, has long faced criticisms for its poor track record of enforcement, especially on major cases, such as insider trading.

The creation of the RCMP’s Integrated Market Enforcement Teams (IMETs) a decade ago has done little to change that, especially in the wake of failed high-profile prosecutions against former executives of Nortel Networks Corp. and Royal Group Technologies Ltd. In fact, a U.S. academic described Canada as “a first-world country with second-world capital markets and third-world enforcement.”
In the unlikely event of a national securities regulator, and continued criticism about the lack of robust and timely enforcement, OSC chair and CEO Howard Wetston said recently the watchdog would “intensify its enforcement program and explore other ways to protect investors.” To that end, the OSC has been focusing on market manipulation and fraud. These types of fraudulent stock schemes may not be as high-profile, but they are among the most prevalent, causing significant damage to investors and compromising the reputation and integrity of Canada’s capital markets.
“We need to up our game in terms of deterrence. We don’t feel the administrative process is effective or appropriate in many of these cases,” said a securities official who asked not to be named.”
Traditionally, these stock fraud cases have been handled at tribunal hearings inside provincial securities regulators. However, the possible penalties are more lenient than those that can be imposed by a judge. As a result, the OSC is trying to move these cases into the courts where jail terms can be meted out.
“Part of the strategy is to put more people in jail,” said the source.
Mr. Atkinson said that there are plans to eventually create a specialized unit within the OSC to tackle insider trading, which has proven much harder to successfully prosecute. It has long been a private complaint of securities regulators across Canada that Crown attorneys and court judges do not take a severe enough view of corporate crime. The serious offences unit, in collaboration with various police forces, is an attempt to change that attitude.
“We want to leverage our expertise in the area of securities with law enforcement to ensure that criminal behaviour is dealt with in the appropriate criminal forum,” said Mr. Atkinson.
The move by the OSC comes at a time when the RCMP has created a financial crimes unit as part of a wider re-engineering of the national police force currently under way across the country. The newly constructed unit is comprised of the Commercial Crime unit, IMETs and the Proceeds of Crime unit, which mostly deals with drug-related offences. The RCMP already shares a joint intelligence unit at the OSC and those investigators will be folded into the OSC’s new serious crime unit.

Creutzfeldt-Jakob Disease: Background Information

Creutzfeldt-Jakob Disease: Background Information








June 14, 2013



Q: What is CJD and how many cases are there in one year?




Creutzfeldt-Jakob Disease (CJD) is a rare prion disease that affects the central nervous system. The disease is always fatal, and there is no known treatment or prevention. There are two main forms of human prion disease, classical CJD and a newer form, called variant CJD (vCJD).




Classical CJD occurs in the general population at a rate of 1–2 cases per million people per year throughout the world. In Canada, between 30 and 50 cases of classical CJD are diagnosed each year.




Classical CJD is recognized to exist in three forms, sporadic, genetic and iatrogenic. Sporadic has an unknown cause, occurs unpredictably and accounts for over 90 per cent of Canadian CJD cases. Genetic CJD, is associated with a gene mutation and iatrogenic CJD is acquired from the accidental transmission of the disease through medical procedures.


Variant CJD has been linked to consumption of meat or meat products from cattle infected with bovine spongiform encephalopathy (BSE) or "mad-cow disease."


Q. What are the symptoms of CJD?


The first symptoms tend to be psychiatric in nature - anxiety, depression, withdrawal and behavioural changes as well as persistent pain and odd sensations in the face and limbs. After several weeks or months, more clear-cut neurological symptoms may set in, including:
Unsteadiness in walking, sudden jerking movements.
Progressive dementia.
Eventually, the patient loses the ability to move or speak, and will need 24-hour nursing care.


Death occurs around a year after the onset of symptoms.

For more information on CJD, visit http://www.healthlinkbc.ca/kb/content/nord/nord33.html

Fraser Health Statement on Creutzfeldt-Jakob Disease

Fraser Health Statement on Creutzfeldt-Jakob Disease

























June 14, 2013










Dr. Paul Van Buynder, Chief Medical Health Officer has released the following statement to clarify reports about suspect cases of “human mad cow disease” in the Lower Mainland:







“I am concerned to see reports this evening in social and traditional media related to our investigation into a small number of possible cases of Creutzfeldt-Jakob disease (CJD). Media have reported that these cases are connected to Bovine Spongiform Encephalopathy – more commonly known as mad cow disease.







Fraser Health has investigated six possible cases of CJD over the past year. After a case review today we can say that one person has CJD and two others are very likely to have it. The other three cases are very unlikely to have CJD.







I want to be clear there is absolutely no evidence that these three confirmed or probable cases are linked to food consumption.







CJD is a neurological disorder reported an average of about 30 times a year in Canada. There are a handful of cases reported in B.C. each year and we expect around 2 cases in the Fraser region. While three in this time frame is one or two more than I expect, it is within statistical likelihood.







There is no outbreak and I want to reassure residents of the lower mainland that there is no risk to the public or to residents in our facilities.







These are classical cases of CJD. Tests conducted on these patients have ruled out variant CJD associated with disease in cattle. There has never been a home grown case of variant CJD in Canada so this is not surprising.







We have a strong public health surveillance system in B.C. and a review of the cases has not revealed any links between them which would suggest a common source of any kind. The patients investigated come from a number of different cities and settings.







Our sympathies are with the families of these cases of severe progressive disease."







Dr. Paul Van Buynder







Learn more about Creutzfeldt-Jakob Disease.

Ontario must crack “code of silence” among correctional officers involved in use of excessive force: Ombudsman (TORONTO – June 11, 2013) Ontario Ombudsman André Marin

Ontario must crack “code of silence” among correctional officers 
involved in use of excessive force: Ombudsman 
(TORONTO – June 11, 2013) Ontario Ombudsman André Marin today called on the
Ministry of Community Safety and Correctional Services to crack the pervasive “code of
silence” under which some guards in the province’s correctional institutions use excessive
force against inmates and conspire to cover it up.
In The Code, his latest report, Mr. Marin details disturbing stories of some correctional
staff who committed “brazen acts of violence” against inmates, attempted to destroy and
falsify evidence, and intimidated colleagues who tried to report the perpetrators. He makes
45 recommendations to the government to end this “dysfunctional culture” and ensure such
incidents are properly investigated and disciplined. The Ministry has pledged to implement
the Ombudsman’s recommendations.
“It is important to remember that inmates, regardless of why they are incarcerated, are
human beings deserving of respect, dignity and humane treatment,” Mr. Marin states in
the report. He urges the Ministry to “focus on the malignant peer pressures that continue
to influence the attitudes and actions of some correctional officers” and act aggressively
to “eradicate the code of silence that threatens the security of inmates and staff alike.”
While noting that correctional institutions can often be overcrowded, understaffed and
under great stress and many correctional officers do their jobs well in difficult conditions,
the Ombudsman’s report reveals systemic problems in the Ministry’s own processes that
have allowed the “code of silence” to fester.
“Staff who breach this code become victims themselves,” Mr. Marin points out. “They
are labelled ‘rats,’ ostracized, treated as pariahs, subject to direct and covert harassment
and threats, and their personal safety is put in jeopardy.”
The investigation, conducted by the Special Ombudsman Response Team, stemmed from
a disturbing trend in complaints first identified by the Ombudsman’s Office in 2010 – to
which Mr. Marin said the Ministry was initially slow to respond. Since the
Ombudsman’s formal investigation was launched in August 2011, the Ministry has
strengthened policies to improve hiring and training practices and ensure more rigorous
investigation of allegations of use of force. But much more needs to be done, he says.
From January 2010 to January 2013, the Ministry confirmed excessive force in 26 of the
55 cases it investigated, the report says. Some 108 staff were disciplined; 31 of those
were fired – and of those, four face criminal charges and one has been convicted. 2
The Ombudsman’s investigators conducted more than 180 interviews with correctional
officers, their union representatives and managers, whistleblowers, inmates and Ministry
officials at all levels. They also visited correctional institutions around the province and
reviewed thousands of documents, photos and videos relating to incidents of use of force.
The 135-page report highlights the stories of nine inmates whose abuse by guards was
inadequately addressed, and one correctional officer who paid a steep price for reporting
assault by a fellow officer.
Mr. Marin’s 45 recommendations urge the Ministry to make it clear that the code of
silence will not be tolerated and those who adhere to it will risk discipline and dismissal.
They also call on the Ministry to:
• reduce opportunities for staff to collude to conceal unlawful force, tamper with
evidence, and intimidate witnesses;
• reinforce the integrity of investigations by restricting access to evidence and
preventing information from being shared;
• improve video surveillance in correctional facilities and the way video evidence is
preserved; and
• clarify authorized defensive techniques for correctional staff and ensure they are
properly trained in de-escalation of conflict and dealing with inmates with mental
illness and special needs.
The Ombudsman also notes that some correctional officers have been openly critical of
the investigation and the Ministry’s response to it so far, both in confidential interviews
and on social media. Some of their Twitter comments are included in the report,
decrying the “climate of distrust and animosity” in the system and the “incompetence of
[management],” and stating: “Overcrowding, etc. = violence.”
Since Mr. Marin’s appointment in 2005, SORT has conducted more than 30
investigations into broad systemic problems affecting millions of Ontarians. The
government has implemented almost all of his recommendations arising from these cases,
including improving newborn screening, increasing lottery security and overhauling the
property tax assessment system.
For the full report, backgrounders and video of the Ombudsman’s news conference, go to
www.ombudsman.on.ca
Aussi disponible en français

Leona Aglukkaq, Minister of Health, accompanied by the Honourable Minister Steven Blaney, Minister of Veterans Affairs and Minister for La Francophonie, announced the Harper Government has introduced the Respect for Communities Act, which would require any potential applications for supervised drug consumption sites in Canada to meet clear criteria before such applications can be considered.

OTTAWA - The Honourable Leona Aglukkaq, Minister of Health, accompanied by the Honourable Minister Steven Blaney, Minister of Veterans Affairs and Minister for La Francophonie, announced the Harper Government has introduced the Respect for Communities Act, which would require any potential applications for supervised drug consumption sites in Canada to meet clear criteria before such applications can be considered.

"Our Government believes that creating a location for sanctioned use of drugs obtained from illicit sources has the potential for great harm in a community," said Minister Aglukkaq.  "Accordingly, we believe that the application process needs to be changed to create formal opportunities for local voices to be heard, and their views considered before an exemption would be considered."

"The illicit drugs covered by the Controlled Drugs and Substances Act pose serious risks to the health of Canadians," said Minister Blaney. "Substances obtained from illegal sources affect public safety and may fuel organized crime, and exemptions for illicit substances must be carefully assessed."

Supervised drug consumption sites require an exemption from Health Canada under Section 56 of the Controlled Drugs and Substances Act in order to legally operate.

This same section of the Act is used to give researchers permission to use controlled substances in scientific research like clinical trials, allow doctors to treat patients with methadone, make it possible for researchers to legally use controlled drugs to euthanize certain animals and allow law enforcement agencies to train police dogs to detect illicit drugs.

Currently, the same review process is in place for all these circumstances, meaning that Health Canada treats a law enforcement agency's application for the purposes of training police dogs in the same way that it would treat an application to open a site in which drug addicts would use street heroin.

The Respect for Communities Act would raise the bar for applications to establish supervised drug consumption sites that would allow for the use of what would otherwise be illegal drugs.  It will not affect any type of Section 56 exemptions for substances obtained from licit sources, which will follow the current process.

Under the proposed new system, applicants for supervised drug consumptions sites would need to provide information outlining the views of a number of stakeholders including:

• Local law enforcement;
• Municipal leaders;
• Public health officials; and
• Provincial and territorial ministers responsible for health, which would include documentation showing what treatment options are available for those dealing with addiction.

An applicant would also be required to provide documentation that shows the site's expected impact on crime rates, the public health reasons for needing such a site, and evidence that there are adequate resources to sustain the site's operations.

These criteria are consistent with those laid out by the Supreme Court of Canada (SCC) in its  2011 ruling on Insite.

"Front-line law enforcement strongly believes that it is important for there to be a high threshold for applicants to meet before any supervised consumption site can be considered," said Tom Stamatakis, President of the Canadian Police Association. "While treating drug addiction is an important goal, my experience in Vancouver is that these sites also lead to an increase in criminal behaviour and disorder in the surrounding community and have a significant impact on police resources, and that's why it will be vital for the views of local police to be taken into account."

The proposed legislation also provides authority for the Minister of Health to publicly post a Notice of Application regarding proposed supervised drug consumption sites, and seek input directly from members of the general public.

Exemption applications for a supervised drug consumption site will continue to be assessed on a case-by-case basis, according to the factors outlined by the SCC.

These actions demonstrate how the Harper Government is acting to protect public health and maintain public safety in Canadian communities.

The federal Conservative Party is denying the existence of a secret fund in the Prime Minister’s Office controlled exclusively by Stephen Harper’s chief of staff. The CBC reported Thursday that Harper's former chief of staff, Nigel Wright, had control of a secret fund when he cut the now infamous $90,000 cheque to disgraced Senator Mike Duffy to repay ineligible Senate expense claims he made.

The federal Conservative Party is denying the existence of a secret fund in the Prime Minister’s Office controlled exclusively by Stephen Harper’s chief of staff.
The CBC reported Thursday that Harper's former chief of staff, Nigel Wright, had control of a secret fund when he cut the now infamous $90,000 cheque to disgraced Senator Mike Duffy to repay ineligible Senate expense claims he made.
CBC News stands by the story.
The NDP on Friday wrote to Elections Canada asking for an investigation to determine whether the fund violates the Elections Act.

The report quoted sources saying the money in the fund comes from Conservative Party coffers, and at times has reached almost $1 million.
On Friday, the party issued a statement that said: "The CBC claimed there is a 'secret' Conservative Party fund run by the PMO. This is false."
But the party had no such denials on Tuesday when CBC sent Conservative spokesman Fred DeLorey an email asking for details about "the special discretionary CPC [Conservative Party of Canada] fund controlled by the PM's chief of staff."
CBC had already confirmed the existence of the fund from other sources, and the email clearly identified it as money used for partisan purposes.
The email asked DeLorey six specific questions about "the special discretionary CPC fund."

• Why was this "special fund" necessary?
• What was it used for during Wright's tenure?
• Approximately how much money was allocated to it each year?
• Are there any limitations on how these funds can be spent (or is it entirely the chief of staff's discretion)?
• How are these funds accounted for?

And finally:

• Is there any reason those funds could not have been used in the Duffy-Wright deal?

DeLorey’s entire response was two lines.
Conservative Party spokesman Fred DeLorey issued a statement Friday denying the existence of a secret fund controlled by the PM's chief of staff. (Twitter.com)
"The prime minister at times incurs expenses that are best paid by the party."
On the question of whether the fund could have been used in the Wright-Duffy deal, Delorey said: "No funds were used for that."
Similarly, there were no denials when CBC News sent an almost identical email to Harper's communications director, Andrew MacDougall.
"I'll have to refer you to the party," MacDougall responded.
Asked whether the special fund was in any way connected to the Duffy-Wright deal, MacDougall responded: "I can give you a clear, 'no.' The funds used were Mr. Wright's personal funds."
The party's denial two days after the exchange of emails makes a number of other claims not supported by fact.
For example: "The CBC claimed party funds are hidden from Elections Canada. This is false."
In fact, Elections Canada does not oversee any political party expenditures outside an election period.
The party's press release states that "The Conservative Party ensures that non-government activities undertaken by the prime minister are never billed to taxpayers.
"The CBC is being selective, failing to mention this is a standard practice for all political parties."
In fact, all the CBC reports – on TV, radio and online – made that point clear.

Parsons v. The Canadian Red Cross Society, 2013 ONSC 3053 (CanLII)

Date:	2013-05-24
Docket:	98-CV-141369; 98-CV-146405
URL:	http://canlii.ca/t/fxl8z
Citation:	Parsons v. The Canadian Red Cross Society, 2013 ONSC 3053 (CanLII), <http://canlii.ca/t/fxl8z> retrieved on 2013-06-06
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Reflex Record	Related decisions, legislation cited and decisions cited

Legislation cited (available on CanLII)

• Class Proceedings Act, 1992, SO 1992, c 6
• Constitution Act, 1867, The, 30 & 31 Vict, c 3
• Courts of Justice Act, RSO 1990, c C.43 — 11(2)

Decisions cited

• Carom v. Bre-X Minerals Ltd., 1999 CanLII 14781 (ON SC)
• Endean v. Canadian Red Cross Society, 1999 CanLII 6357 (BC SC)
• Ewachniuk v. Law Society of British Columbia, 1998 CanLII 6469 (BC CA)
• Fantl v. Transamerica Life Canada, 2009 ONCA 377 (CanLII)
• Fontaine v. Canada (Attorney General), 2012 BCSC 839 (CanLII)
• Harrington v. Dow Corning Corp., 1997 CanLII 4153 (BC SC)
• HMTQ v. Pilarinos and Clark, 2001 BCSC 1690 (CanLII)
• MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC)
• Mccutcheon v. Cash Store Inc., 2006 CanLII 15754 (ON SC)
• Morguard investments ltd. v. De savoye, 1990 CanLII 29 (SCC)
• Nantais v. Teletronics Proprietary (Canada) Ltd., 1995 CanLII 7113 (ON SC)
• Webb v. K-Mart Canada Ltd., 1999 CanLII 15076 (ON SC)
• Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 (CanLII)
• Wilson v. Servier Canada Inc., 2002 CanLII 49484 (ON SC)

CITATION:  Parsons v. The Canadian Red Cross Society, 2013 ONSC 3053

DATE: 20130524

COURT FILE NO.: 98-CV-141369

 

SUPERIOR COURT OF JUSTICE

Winkler C.J.O.

BETWEEN:

Dianna Louise Parsons, Michael Herbert Cruickshanks, David Tull, Martin Henry Griffen, Anna Kardish, Elsie Kotyk, Executrix of the Estate of Harry Kotyk, deceased and Elsie Kotyk, personally

Plaintiffs

and

The Canadian Red Cross Society, Her Majesty the Queen in Right of Ontario and the Attorney General of Canada

Defendants

 

and

Her Majesty the Queen in the Right of the Province of Alberta, Her Majesty the Queen in the Right of the Province of Saskatchewan, Her Majesty the Queen in the Right of the Province of Manitoba, Her Majesty the Queen in the Right of the Province of New Brunswick, Her Majesty the Queen in the Right of the Province of Prince Edward Island, Her Majesty the Queen in the Right of the Province of Nova Scotia, Her Majesty the Queen in the Right of the Province of Newfoundland, the Government of the Northwest Territories, the Government of Nunavut and the Government of the Yukon Territory

Interveners

 

Proceeding under the Class Proceedings Act, 1992

 COURT FILE NO. 98-CV-146405

AND BETWEEN:

 

James Kreppner, Barry Isaac, Norman Landry, as Executor of the Estate of the late Serge Landry, Peter Felsing, Donald Milligan, Allan Gruhlke, Jim Love and Pauline Fournier as Executrix of the Estate of the late Pierre Fournier

 

Plaintiffs

and

 

The Canadian Red Cross Society, the Attorney General of Canada and Her Majesty the Queen in Right of Ontario

 

Defendants

and

Her Majesty the Queen in the Right of the Province of Alberta, Her Majesty the Queen in the Right of the Province of Saskatchewan, Her Majesty the Queen in the Right of the Province of Manitoba, Her Majesty the Queen in the Right of the Province of New Brunswick, Her Majesty the Queen in the Right of the Province of Prince Edward Island, Her Majesty the Queen in the Right of the Province of Nova Scotia, Her Majesty the Queen in the Right of the Province of Newfoundland, the Government of the Northwest Territories, the Government of Nunavut and the Government of the Yukon Territory

 

Interveners

Proceeding under the Class Proceedings Act, 1992

Harvey T. Strosberg, Q.C., and J.J. Camp, Q.C., for the plaintiffs/moving parties

M. Michele Smith and Joshua Hunter, for the responding party Attorney General of Ontario

Paul B. Vickery and Sheila J. Hepworth, for the responding party Attorney General of Canada

John E. Callaghan, for the responding party Fund Counsel for Ontario

H. Michael Rosenberg, for the interveners

Heard:  March 20, 2013

 

Winkler C.J.O.

A.           OVERVIEW

[1]      This motion for directions raises the question whether a judge of the Superior Court of Ontario may sit in another province to hear a motion concerning a pan-Canadian settlement agreement of related class actions certified in Ontario, British Columbia and Québec. The class actions were brought on behalf of people in all provinces and territories of Canada who were infected by Hepatitis C through the Canadian blood supply. The answer to this question affects the ability of three supervisory judges to sit together in one location to adjudicate common matters over which they have personal and subject-matter jurisdiction.

[2]      The Attorney General of Ontario (“AG Ontario”) contends that a judge of Ontario’s Superior Court of Justice lacks jurisdiction to hold a hearing concerning the settlement agreement in a location outside Ontario. AG Ontario does not take issue with the Superior Court’s personal and subject-matter jurisdiction over the proceeding. Nor is it raising a jurisdictional issue concerning the certification of an extra-provincial class; indeed, AG Ontario consented to the certification order. AG Ontario’s jurisdictional objection is solely concerned with the physical location of the hearing.

[3]      AG Ontario submits that if the court were to hold a hearing outside Ontario, any order the court made would be a nullity and could be set aside for want of jurisdiction on an appeal or in collateral proceedings. The position taken by AG Ontario thus requires this court to make a preliminary determination concerning its ability to conduct a hearing outside Ontario.

[4]      I conclude that a judge of the Superior Court of Justice in Ontario may preside over a hearing that is conducted outside Ontario where the Ontario court has personal and subject-matter jurisdiction over the parties and the issues in the proceeding. This jurisdiction is not lost simply because the court presides over a motion in a location that is outside the court’s regular territorial limits. Rather, the court’s inherent jurisdiction to control its own process empowers the court to consider if it should exercise its discretion to hold a hearing outside its home province having regard to whether sitting outside the court’s home province promotes the interests of justice in the particular case. I would exercise this discretion in the present case. My reasons follow.

B.           FACTUAL BACKGROUND

[5]      Concurrent class proceedings were certified in Ontario, British Columbia and Québec on behalf of individuals who were infected with Hepatitis C by the Canadian blood supply between January 1, 1986 and July 1, 1990. The British Columbia and Québec class actions included residents of those provinces who received Hepatitis-C positive blood or blood products in those provinces between January 1, 1986 and July 1, 1990. The Ontario class actions included all other persons who received Hepatitis-C positive blood or blood products in Canada during that period.

[6]      The certified class proceedings culminated in a national settlement agreement dated June 15, 1999, whereby the Governments of Canada, all ten provinces and all three territories, agreed to be bound by its terms upon the agreement receiving court approval. The governments of the provinces and territories other than British Columbia and Québec moved to be included as defendants in the Ontario actions if the settlement agreement were approved by the Ontario court.

[7]      Settlement approval motions were brought before the supervisory judges of the class actions in Ontario, British Columbia and Québec. In 1999, each of the courts approved the settlement agreement: see Parsons v. Canadian Red Cross Society (1999), 40 C.P.C. (4th) 151 (S.C.) (approved on September 22, 1999 by Winkler J.); Endean v. Canadian Red Cross Society 1999 CanLII 6357 (BC SC), (1999), 68 B.C.L.R. (3d) 350 (S.C.) (approved on October 1, 1999 by Smith J.); Honhon c. Canada (Procureur général), [1999] J.Q. no 4370 (S.C.) (approved on September 21, 1999 by Morneau J.).

[8]      The settlement agreement established a fund of $1.118 billion from which eligible claimants may receive compensation depending on the severity of their illness. Class members across Canada received notice of the settlement and a small number of people chose to opt out. Over 13,000 class members from every province and territory within Canada have participated in and benefitted from the national settlement.  Approximately 5,200 of the class members are residents of Ontario. As well there are over 3,200 class members who are residents of provinces and territories other than British Columbia and Québec who are members of the Ontario class and fall under the jurisdiction of the Ontario court.

[9]      Pursuant to the settlement agreement, a court-appointed Administrator is charged with the role of reviewing and deciding claims and giving notice of its decision to claimants. Claimants have the right to refer the Administrator’s decision in respect of a claim to a court-appointed arbitrator or referee. These references and arbitrations are heard in the province or territory where the claimant resides. When a claimant proceeds by way of arbitration, there is no appeal. When a claimant proceeds by way of a reference, the claimant may seek a confirmation review. This review is conducted by the court having jurisdiction over the class action in which the claimant is a class member. The Ontario court has jurisdiction over reviews of referee decisions sought by members of the Ontario class, whether or not they reside in Ontario.

[10]   The settlement agreement assigns a supervisory role over implementing and enforcing its provisions to the Superior Courts of British Columbia, Ontario and Québec. More specifically, the settlement agreement provides:

The Courts will issue judgments or orders in such form as is necessary to implement and enforce the provisions of this Agreement and will supervise the ongoing performance of this Agreement including the Plans [for distributing the settlement funds] and the Funding Agreement.

The settlement agreement specifies that any such judgment or order of the courts takes effect “only upon the date when the last judgment or order of the Courts becomes final without any material differences in the three judgments or orders.”

[11]   The settlement agreement empowered the courts to appoint a Joint Committee, which is charged with the duty of establishing protocols (which must be approved by the courts) for the Administrator, Referees and Arbitrators in administering the agreement. The Joint Committee consists of four counsel who represented the class action plaintiffs in Ontario, British Columbia and Québec.

[12]   On August 13, 2012, class counsel filed motions before the supervisory judges from Ontario, British Columbia and Québec for approval of a proposed protocol extending the June 30, 2010 deadline in the settlement agreement for filing first claims for benefits from the settlement funds. These motions were opposed by all defendants.

[13]   Class counsel, in consultation with the court monitor, proposed that the most efficient and effective procedure for adjudicating the motions would be to have the three supervisory judges sit together in one location so that they would hear the same submissions and be better positioned to reach concurrent orders without material differences, as required by the settlement agreement. The location of Edmonton, Alberta was chosen for purposes of efficiency and cost effectiveness. The three supervisory judges, Chief Justices of their respective courts,[1] were scheduled to be in Edmonton for the week of September 17, 2012 for a meeting of the Canadian Judicial Council. The motion was thus made returnable on September 18, 2012, in Edmonton.

[14]   Prior to the hearing, AG Ontario objected to the Ontario supervisory judge sitting outside the territorial boundaries of the province of Ontario. AG Ontario threatened to bring a motion challenging the court’s jurisdiction. Accordingly, the motion was adjourned.

[15]   The supervisory judges understood that AG Ontario was prepared to file a formal motion raising this jurisdictional issue. However, AG Ontario failed to proceed with such a motion. As a result, members of the Joint Committee responded by bringing this motion for directions. Class counsel deemed it was important to have the jurisdictional question resolved because it will be a recurring issue in implementing the settlement agreement. Similar motions for directions were brought by class counsel in British Columbia and Québec.

C.           positions of the parties

[16]   AG Ontario contends that the Superior Court of Justice has no jurisdiction, either at common law or by statute, to hear a contested motion while sitting outside Ontario. AG Ontario submits an Ontario court should not sit outside Ontario in the absence of a comprehensive legislative scheme allowing it to do so. AG Ontario instead proposes that a joint hearing be held by way of videoconference, with the Ontario, British Columbia and Québec courts holding hearings in their respective provinces.

[17]   In contrast, Ontario Class Counsel, the Attorney General of Canada, and Fund Counsel for Ontario agree that a judge of the Superior Court of Justice of this province can render an enforceable judgment concerning the settlement agreement even if sitting outside the judge’s ordinary territorial limits.

[18]   The interveners – the Attorneys General of the provinces other than Ontario, British Columbia and Québec, and the territorial governments – took no position on the motion.

D.           ANALYSIS

(1)         Nature of the jurisdictional issue

[19]   Jurisdiction is a term that encompasses several concepts. As noted in R. v. Pilarinos, 2001 BCSC 1690 (CanLII), 2001 BCSC 1690, [2001] B.C.T.C. 1690, at para. 19: “Jurisdiction can be, amongst other things, exclusive, concurrent, original, in personam, in rem, and territorial.”

[20]   The only issue raised by AG Ontario concerns the judge’s physical location when hearing a matter. AG Ontario does not suggest that sitting outside Ontario would infringe upon the subject matter or personal jurisdiction of the Alberta Court of Queen’s Bench. Rather, the parties accept that the Superior Court of Justice in Ontario has jurisdiction over the subject matter in the proceeding and has personal jurisdiction over the parties.

(2)         Is there any constitutional or statutory prohibition preventing the Superior Court of Justice from holding a hearing outside Ontario?

(a)   Historical jurisdiction of the English courts to sit outside England

[21]   AG Ontario’s primary argument is that because, at common law, English courts could not hold hearings outside England, and because there is no explicit statutory provision authorizing Ontario superior courts to hold hearings outside Ontario, the Superior Court cannot hold hearings outside Ontario. In support of this position, AG Ontario cites s. 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that the Superior Court of Justice possesses all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.

[22]   AG Ontario made detailed submissions concerning the historical common law restrictions preventing English courts from sitting outside England going back to the Magna Carta. In my view, the restrictions that exist in England are not determinative of the jurisdiction issue in the present case.

[23]   The Supreme Court of Canada’s decision in Morguard Investments v. Savoie, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, is, by analogy, instructive in this case.  Writing for the unanimous court, La Forest J. observed, at p. 1098, that there is no comparison between the interprovincial relationships of today and the relationships between foreign countries in the 19th century. La Forest J. spoke of the need to shape common law rules in a way that accommodates modern commercial and societal realities:

The world has changed since the above rules [concerning when English courts will enforce a foreign judgment] were developed in 19th century England. Modern means of travel and communications have made many of these 19th century concerns appear parochial. The business community operates in a world economy and we correctly speak of a world community even in the face of decentralized political and legal power. Accommodating the flow of wealth, skills and people across state lines has now become imperative. Under these circumstances, our approach to the recognition and enforcement of foreign judgments would appear ripe for reappraisal. 

[24]   Moreover, the restrictive English common law rules regarding the recognition and enforcement of foreign judgments “fly in the face of the obvious intention of the Constitution to create a single country”: Morguard, at p. 1099. Unlike England, this country’s constitutional underpinnings are intended to ensure the mobility of Canadians across provincial lines. La Forest J. elaborated on why Canadian constitutional and sub-constitutional arrangements and practices warrant shaping the rules of comity between provinces to conform to the federal structure of the Constitution, at pp. 1099-1100:

The Canadian judicial structure is so arranged that any concerns about differential quality of justice among the provinces can have no real foundation. All superior court judges – who also have superintending control over other provincial courts and tribunals – are appointed and paid by the federal authorities. … Any danger resulting from unfair procedure is further avoided by sub-constitutional factors, such as for example the fact that Canadian lawyers adhere to the same code of ethics throughout Canada.

[25]   For the same reasons that the rigid English common law requirements for enforcing foreign judgments are not suited to modern commercial realities or the Canadian constitutional landscape, English common law prohibiting English courts from sitting outside England should not be applied to prohibit the superior courts of this country from sitting outside their home provinces when it would be in the interests of justice to do so. The English common law rule precluding English courts from sitting outside England is not suited to modern realities of increasingly complex litigation involving parties and subject matters that transcend provincial borders. Moreover, there is a significant difference between an English court sitting outside England and a provincial superior court sitting elsewhere in Canada. The latter situation does not engage any issue of sovereignty among foreign states.

(b) Is there any domestic authority precluding Ontario courts from holding hearings outside Ontario?

[26]   AG Ontario further submits that Ontario courts historically could not hold hearings outside Ontario. However, it did not point to any constitutional or statutory limitation on the geographical location where the provincial superior courts may sit in order to adjudicate on the issues raised in a proceeding.

[27]   Professor Janet Walker observes in her article, “Are National Class Actions Constitutional? – A Reply to Hogg and McKee” (2010) 48 Osgoode Hall L.J. 95, at pp. 105-108, that there is no provision in the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3., that addresses or could be said to confine the superior courts’ jurisdiction to adjudicate within territorial boundaries. Equally, there is no provision of the Constitution that speaks to the physical location where the superior courts must sit.

[28]   As for the alleged statutory limitation on the location where the Superior Court of Justice may conduct hearings, Ontario notes that the various incarnations of the Judicature Act from 1881 until 1984 permitted judges of the High Court of Justice to “sit and act, at any time and at any place, for the transaction of any part of the business of the courts” (emphasis added). I fail to see how this wording can be taken as revealing a legislative intention to limit the court’s ability to hold hearings outside Ontario.

[29]   The only common law authority referred to by AG Ontario that even speaks to the issue of a superior court judge sitting outside provincial boundaries is Ewachniuk v. Law Society of British Columbia 1998 CanLII 6469 (BC CA), (1998), 156 D.L.R. (4th) 1 (C.A.). However, the question of the ability of a superior court judge to sit outside the province was not directly before the court in Ewachniuk. Rather, the central question was whether a discipline panel of the Law Society of British Columbia had statutory authority to hold part of a hearing in the United States. 

[30]   A majority of the British Columbia Court of Appeal (per Rowles J.A., Finch J.A. concurring in the result, Goldie J.A. dissenting) held that a discipline panel does not have statutory authority to sit outside British Columbia. In reaching this conclusion, Rowles J.A. stated, at para. 31, that “the jurisdiction of the superior courts of the provinces is determined internally by the Constitution and externally by the boundaries of the provinces” and that superior courts of the provinces “do not sit outside their boundaries.” However, this particular observation was not necessary for the decision and was not mentioned in the concurring reasons.

[31]   In Ewachniuk, the British Columbia Court of Appeal had to determine the powers of a statutory tribunal, the authority of which is limited by statute. The conclusion that a particular tribunal created by a provincial legislature has no power to sit outside the boundaries of that province is not determinative of where a court of inherent jurisdiction may sit. In any event, Rowles J.A. was not considering the context of a joint hearing conducted by superior courts of three different provinces determining an issue related to the implementation of a pan-Canadian settlement agreement. 

[32]   Thus, AG Ontario was unable to provide any constitutional, statutory or binding common law authority for the position that a provincial superior court that otherwise has jurisdiction over the subject matter and the parties to the proceeding is precluded from conducting a hearing in a location outside the province. I turn now to the common law authority, which, in my view, supports a conclusion that provincial superior courts have discretion to sit outside their home province as a function of their inherent jurisdiction to control their own process.

(c) Jurisdiction of the superior courts to fully control their own process

[33]   The Supreme Court of Canada in MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, confirmed, at para. 15, that the inherent jurisdiction of the superior courts includes the power of the courts to fully control their own process:

The superior courts have a core or inherent jurisdiction which is integral to their operations.  The jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the Constitution.  Without this core jurisdiction, s. 96 could not be said either to ensure uniformity in the judicial system throughout the country or to protect the independence of the judiciary.  Furthermore, the power of superior courts to fully control their own process is, in our system where the superior court of general jurisdiction is central, essential to the maintenance of the rule of law itself.

[34]   Lamer C.J., writing for the majority, referred, at para. 33, to the article by Keith Mason, “The Inherent Jurisdiction of the Court” (1983), 57 A.L.J. 449, in which he identified the following four functions of inherent jurisdiction: (i) ensuring convenience and fairness in legal proceedings; (ii) preventing steps being taken that would render judicial proceedings inefficacious; (iii) preventing abuse of process; and (iv) acting in aid of superior courts and in aid or control of inferior courts and tribunals. 

[35]   There is no need for comprehensive legislation empowering a judge of the superior court to implement procedures that are intended to address these four functions of inherent jurisdiction. Indeed, the courts are obliged to fill the void by exercising their inherent power to settle the rules of practice and procedure as to disputes. McLachlin C.J., writing for a unanimous Supreme Court in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 (CanLII), 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 34, spoke of the superior courts’ inherent power to fill any procedural void that has been left by the legislature:

Absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them. However desirable comprehensive legislation on class action practice may be, if such legislation has not been enacted, the courts must determine the availability of the class action and the mechanics of class action practice. [Citations omitted.]  

[36]   McLachlin C.J. was prepared to read into the rules of civil procedure of a province that had no class proceedings legislation what amounted in essence to a class proceeding provision. The Supreme Court filled a void where the nature of the dispute before the court required a process permitting aggregate litigation. It seems to me that, in doing so, the Supreme Court provided guidance in the present context.

[37]   In fact, the courts have previously filled the procedural void left by the legislature when it comes to administering the settlement of an inter-provincial class action. In Fontaine v. Canada (Attorney General), the judges of the superior courts of Ontario, British Columbia, Québec, Alberta and Saskatchewan sat together in Calgary, Alberta in March 2007 to hear a motion for approval concerning the Indian Residential Schools class action settlement. The superior courts of Manitoba, Yukon, Northwest Territories and Nunavut were linked to the Alberta courtroom by telephone conference.

[38]   The inherent jurisdiction of the Superior Court of Justice to fashion procedures to facilitate the efficient and effective resolution of issues encountered in implementing a pan-Canadian settlement agreement is reinforced by the general supervisory powers conferred by the Class Proceedings Act, 1992: see Fontaine v. Canada (Attorney General), 2012 BCSC 839 (CanLII), 2012 BCSC 839, at paras. 111-12. Section 12 of the Act empowers the court to “make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination”. This broad jurisdiction exists throughout the implementation of the settlement agreement. As stated in Fantl v. Transamerica Life Canada, 2009 ONCA 377 (CanLII), 2009 ONCA 377, 95 O.R. (3d) 767, at para. 39: “the court’s supervisory jurisdiction… continues throughout the ‘stages’ of the proceeding until a final disposition, including the implementation of the administration of a settlement”.

(d) Conclusion on jurisdiction

[39]   The request that this court hear a contested motion sitting together with the supervisory judges from British Columbia and Québec in a different province raises an issue concerning this court’s inherent jurisdiction to fully control its own process. In particular, the request engages the following two functions of inherent jurisdiction as referred to in MacMillan Bloedel: ensuring convenience and fairness in legal proceedings and preventing steps being taken that would render judicial proceedings inefficacious.

[40]   Accordingly, the issue then becomes whether this court should exercise its discretion to sit outside the territorial boundaries of Ontario.

(3)         Should the court exercise its discretion to sit outside the territorial boundaries of Ontario?

[41]   The prospect of a court exercising its discretion to sit outside the territorial boundaries of its home province only arises where the court has subject matter and personal jurisdiction over the proceeding. This scenario occurs infrequently. However, it does arise in relation to class action litigation and settlement administration involving national classes. Such cases are commonly referred to as “complex litigation” which of necessity require innovative solutions to problems that are often not addressed by the rules of court or by statute.

[42]   Apart from the Hepatitis C class actions, provincial superior courts have certified a number of multi-jurisdictional class actions with extra-provincial class members: see, for example, Nantais v. Telectronics Proprietary (Canada) Ltd. 1995 CanLII 7113 (ON SC), (1995), 25 O.R. (3d) 331 (Gen. Div.), leave to appeal to Divisional Court refused; Carom v. Bre-X Minerals Ltd. 1999 CanLII 14781 (ON SC), (1999), 43 O.R. (3d) 441 (Gen. Div.); Webb v.  K‑Mart Canada Ltd. 1999 CanLII 15076 (ON SC), (1999), 45 O.R. (3d) 389 (S.C.); Wilson v. Servier Canada Inc. 2002 CanLII 49484 (ON SC), (2002), 59 O.R. (3d) 656 (S.C.); McCutcheon v. The Cash Store Inc. 2006 CanLII 15754 (ON SC), (2006), 80 O.R. (3d) 644 (S.C.); Harrington v. Dow Corning Corp. 1997 CanLII 4153 (BC SC), (1997), 29 B.C.L.R. (3d) 88 (S.C.).

[43]   A court should exercise its discretion to hold a hearing outside its home province sparingly. However, the interests of justice may in certain situations be such that the court is entitled – indeed, perhaps even required – to exercise its jurisdiction to hold a hearing outside its home province. When the exercise of this discretion takes place in the context of a class proceeding, the recognized goals of achieving judicial economy and enhancing access to justice must be taken into account. Therefore, these goals must be considered in determining the location of the hearing.

[44]   The underlying motion before this court seeks to extend the deadline in the Hepatitis C settlement agreement for filing first claims. This will require the judges of the superior courts of Ontario, British Columbia and Québec to independently exercise their discretion pursuant to their supervisory jurisdiction over the settlement agreement. Under the terms of the settlement agreement, for an order of the courts to take effect, the courts must issue orders without material difference. The orders would be issued and entered in each judge’s respective home province.

[45]   It is apparent that holding a single hearing instead of three will save expense and valuable resources. Equally important is that a single hearing will help to avoid potential additional costs by facilitating the process of rendering consistent judgments as mandated by the settlement agreement. Should the courts reach inconsistent orders, the parties may be required to re-attend, thereby requiring further legal costs that would be borne by the settlement trust.

[46]   The risk of inconsistent decisions is a very real concern and not merely hypothetical. This scenario has unfolded previously in these proceedings. After the approval of the settlement agreement, a motion to obtain approval of the Administrator of the settlement agreement was brought in each of the three courts. Three separate and consecutive hearings were held in Ontario, British Columbia and Québec. The courts in Ontario and British Columbia approved the administrator recommended by class action counsel, whereas the Québec court raised concerns about that appointment and called for more evidence and submissions. In the end, the Québec court approved a different administrator. The Ontario and British Columbia courts were provided with the transcripts of the Québec proceeding and issued subsequent orders approving the Administrator approved by the Québec court.

[47]   A joint hearing of all three supervisory courts avoids to the greatest extent possible – in keeping with the principle of judicial independence – the potential for inconsistent orders and the costs associated therewith. A joint hearing ensures that the supervisory judges will receive the same oral and written submissions and will be able to confer directly with one another before issuing an order on the merits.

[48]   The alternative proposal advanced by AG Ontario of using video-conferencing technology to permit a concurrent hearing in three separate locations suffers from technical and logistical constraints. Given the current state of technology, it would be difficult for the individual judges to ask questions of the numerous counsel, who would be appearing at three sites, without repeated interruptions and breakdowns in the flow of exchange between the bench and counsel. Experience has shown that video-conferencing technology does not offer the equivalent procedural advantages of holding a hearing before all the supervisory judges in one location.

[49]   AG Ontario further submits that the open courts principle demands that the hearing be held in Ontario, and that Ontario residents (including class members, defendants and other interested parties) would suffer prejudice by having to travel to attend the hearing in Edmonton. Further, Ontario submits that while the class members in other provincial jurisdictions have given up their right to have a hearing in their home provinces by not opting out of the class, the Ontario class members have not given up this right. This argument accepts that class members can voluntarily concede their right to an open hearing in their province.

[50]   AG Ontario’s argument overlooks the fundamental reality of class proceedings, that Ontario class members are represented by class counsel. Class counsel consented on behalf of all class members to the hearing being conducted in another province. This is a complete answer to AG Ontario’s concerns that the open court principle is imperilled by holding the hearing outside of Ontario.

[51]   If Ontario class members had wanted to observe the hearing, class counsel could have requested that the hearing be transmitted by way of video-link to an Ontario courtroom.  In the present case no such request was made.

E.           CONCLUSION

[52]   This motion raises a narrow procedural issue concerning the physical location of a hearing involving the pan-Canadian settlement agreement of the Hepatitis C class actions. No issue is taken with the composition of the class or with the court’s personal and subject matter jurisdiction over the proceeding.

[53]   In the interests of promoting access to justice and judicial economy, the three supervisory courts were prepared to sit together to hear and determine a motion for directions regarding the extension of the time to file claims under the settlement agreement. This was an instance of judicial cooperation intended to permit the supervisory judges to efficiently and effectively hear submissions so that each court could render a decision on a matter within its own competence. In my view, AG Ontario’s highly restrictive reading of the inherent jurisdiction of the Superior Court of Justice to control its own process is inimical to this judicial initiative. Furthermore, in my opinion, AG Ontario’s proposed alternatives to a joint hearing, whether in the form of three duplicative hearings or a video-linked joint hearing, do not adequately address the goals of ensuring access to justice and judicial economy.

[54]   Access to justice is a national and, indeed, an international, issue. The Hepatitis C and Indian Residential Schools class actions are internationally recognized examples of Canadian class proceedings that provided access to justice to thousands of people who suffered common wrongs. The procedural vehicle of the class action has permitted these victims to obtain redress for the harms they have suffered. The tragic events that gave rise to the actions transcended provincial borders and were national in scope. The settlements were pan-Canadian in nature because of the need to avoid inefficiencies and costly duplication which would have ensued had the settlements been limited by provincial jurisdictions.

[55]   Within Canada’s constitutional framework, the provincial and territorial superior courts are charged with the responsibility for certifying class actions, approving settlement agreements, and, ultimately, administering those settlements. The provincial superior courts have had to adapt their procedures to ensure that settlements of pan-Canadian class actions achieve their intended purpose in the most efficient and effective way possible.

[56]   Contrary to AG Ontario’s position, I conclude that there is no constitutional, statutory or common law provision precluding the Superior Court of Justice from conducting a hearing outside Ontario. Where the Superior Court of Justice has subject matter and personal jurisdiction over a proceeding, the court may conduct a hearing outside the province as a function of its inherent jurisdiction to fully control its own process.

[57]   In deciding whether to exercise this discretion, the court should consider if sitting outside Ontario is in the interests of justice. In the class proceedings context where national or inter-provincial classes are involved, the interests of justice include the goals of achieving judicial economy and access to justice.

[58]   Having regard to these considerations, I am satisfied that it is in the interests of justice for this court to conduct a hearing in a location outside Ontario alongside the other two supervisory judges from British Columbia and Québec.

 

Released:    May 24, 2013  WKW

                                               

 

                                                                                      “W.K. Winkler C.J.O.”

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[1] Chief Justice F. Rolland of the Québec Superior Court and Chief Justice R.J. Bauman of the Supreme Court of British Columbia are the two other supervisory judges of the settlement agreement.