Trio of proposed provincial changes brings strong response from TLA

By Paul Russell, LegalMatters Staff • Providing input about proposed changes to various pieces of provincial legislation has been a key focus of the Toronto Lawyers Association (TLA) during the past few months, says president Margaret Waddell.

“The Ministry of the Attorney General has been keeping us very busy lately with many proposed changes to a lot of legislation,” says Waddell, founding partner of Waddell Phillips PC. “Three changes are of key concern.”

The first two involve Bill 161, the government’s Smarter and Stronger Justice Act, which she says is in committee after finishing second reading.

“This is a huge omnibus bill, with 20 schedules proposing very significant changes to various pieces of legislation,” she tells Legalmatterscanada.ca.

Schedule 4 of the bill, which proposes amendments to the 1992 Class Proceedings Act, is a key concern of TLA members, Waddell says, particularly a suggested change to the certification test.

“Some of these changes [regarding Sch. 4, amendments] to the Class Proceedings Act are consistent with recommendations put forward by the Law Commission of Ontario report, some were not recommended at all in the report, or in a few cases, a few were specifically recommended against.”

A U.S. approach to class actions

“The proposed new test determines whether a class proceeding is superior to any other proceeding and that the common issues predominate over any other individual issues,” she explains.

“The language in the bill seems to import concepts from the U.S. class action rule 23, which is very different than what we now use in Canada,” Waddell says. “It is a much deeper review into the merits of the claim, and it has resulted in stopping many different cases from proceeding as a class action, such as where questions about causation in personal injury cases may arise.”

She says unlike Canada, the United States has a “very robust multidistrict litigation system” to deal with mass torts.

“This system handles cases that aren’t class actions, but are tort claims being dealt with on a mass basis, which is something we just don’t have here,” Waddell says.

Since Canada does not have the administrative structure or capacity to handle mass actions, moving to something closer to the U.S. model is a real concern to the TLA, she says.

“If these proposed amendments come through, they could really grind the court system to a halt, as well as raise access barriers to the courts for individuals who have suffered mass harms, but have not suffered large damages,” Waddell says.

In its submissions to the government, she says the TLA recommends Ontario adopt the uniform class action legislation put forward by the Uniform Law Conference of Canada, which has already been accepted in British Columbia, Alberta and Saskatchewan.

“To its credit, the proposed Ontario legislation has taken some of that legislation, when it comes to dealing with multi-jurisdiction class actions,” she says. “What we are saying is to just use that legislation for the purpose of the certification test as well.”

Under this legislation, Waddell says courts can take into consideration whether common issues predominate over the individual issues, but that is just one factor to consider.

“It is a middle ground, and it makes good sense that there is uniformity across provinces about how class actions are being processed,” she says.

Legal Aid focus could change

When it comes to the omnibus bill, Waddell says a second focus for the TLA is on Schedules 15 and 16, which both deal with Legal Aid.

“The TLA is concerned that the proposed amendments to the Legal Aid Services Act, 1998 reflect a policy sea-change with respect to this government’s commitment to funding basic minimum legal services for destitute and low-income Ontarians,” the TLA submission to the government reads.

“The proposed amendments to section 1 of the Act signal that ensuring access to justice for low-income individuals and disadvantaged communities will no longer anchor the statutory mandate of Ontario’s legal aid system … The TLA is left with the strong impression that the government’s concern is not with providing the barest of essential legal services to disadvantaged Ontarians, but rather with limiting its expenditures from Treasury,” the letter reads.

Judicial appointments should be based on merit

The third area of concern is proposed amendments to the judicial appointments process, Waddell says, which regulate the appointment of provincial judges and justices of the peace.

“The government says it intends to change the legislation and process, and some of the changes are fine,” she says, giving the example of how the judicial advisory committee will be asked to submit six names when an appointment comes up, rather than just two as it now does.

“Having a slightly broader field to choose from is uncontroversial,” Waddell says. “The problem is that if the attorney general doesn’t like any of those first six, he can reject them all and say, ‘Send me another six, until he finds someone he likes.”

She says that raises concerns that the successful person will not be chosen strictly on merit.

“This is just too much political interference in what is supposed to be an independent judiciary, and raises the spectre of partisan choices being made,” Waddell says.

She says the current Ontario provincial court system is renowned for being one of the best in the world.

“People come from many other countries to see our system, which is considered exceptional,” Waddell says. “There is already tremendous diversity in the appointments, which is reflective of the Ontario citizenry, and the quality of justice is just superb.”