Lexpert Magazine

40 LEXPERT MAGAZINE | JANUARY/FEBRUARY 2017 Chambre de notaires reaffirms the uniqueness of Canada's jurisprudential po- sition on solicitor-client privilege. "Other jurisdictions are not going in this direc- tion," Feder says. "e rulings put Canada out on an island so far as the rest of the Commonwealth is concerned, and US law- yers can't believe it." e fallout, Feder believes, will be sig- nificant. "ere are a lot of administrative practices throughout Canada that are not fully cognizant and respectful of the con- stitutional status that solicitor-client privi- lege now clearly enjoys," he says. 4 Endean v. BC; Parsons v. Ontario (SCC, OCA) Many observers believe that these twin decisions, in which the SCC ruled that su- perior court judges in Ontario and British Columbia can conduct certain hearings outside of their home province, will facili- tate the management of multijurisdictional class actions. Both the BC Court of Appeal and the Ontario Court of Appeal had ruled that the open court principle necessitated a video link back to courtrooms in the judges' home provinces. But the SCC disagreed, holding that no such link was necessary. Still, Chris Naudie of Osler in Toronto says the rulings, which arose in the con- text of a complex $1.1-billion settlement of the national class action relating to the hepatitis C tainted blood scandal, will not likely result in significant changes to cur- rent practice regarding settlement hearings for national class actions. "e protocol that exists includes a video link, which isn't much of an issue because the technology is pretty seamless these days," he says. "So don't expect to see roving judges with suit- cases as a matter of course, both because we have a settled practice that works very well and also because judges are more inclined to convene settlement hearings in their home province." But the SCC's reasoning, which founds judges' power to sit outside their home province on broad statutory authority, suggests that the SCC has an open mind regarding courts' discretion in the man- agement of national class actions gener- ally. More particularly, the SCC agreed with then Chief Justice Warren Winkler of the OCA that taking a narrow view of this discretion leaves the common law ill- equipped to deal with the "modern realities of increasingly complex litigation involving parties and subject matters that transcend provincial borders." It all makes sense, says Martin Sclisizzi of Borden Ladner Gervais LLP in Toronto. "is is an immense decision because the modern reality is one in which national class actions are becoming the norm," he says. "So does it seem right for five judges to hear five identical settlement applications? ink of the cost and drain on resources, and the extent to which these decisions make the process so much more efficient." Just how far courts will take this liberal approach remains to be seen. It's not clear, for example, how courts will deal with set- tlement approvals in which objectors want to make submissions in a local courtroom. "Judges do like to have an open courtroom to accommodate last minute objections," Naudie says. "In these cases, a video link may be the answer." e SCC did emphasize that the cases before them were being decided on a paper record without oral evidence, which meant that judges would not be required to exer- cise coercive powers — such as the power to direct a witness to appear and to answer questions — that might be subject to terri- torial limits. "e decisions also leave open questions about whether the power to sit outside of a home jurisdiction extends to joint hearings involving oral evidence, joint hearings in a cross-border class proceed- ing, or to cases that are not class actions," Naudie says. 5 Nortel Networks Corp. (Re) (OCA) is decision of the Ontario Court of Ap- peal, denying leave to appeal, emanates from the cross-border insolvency proceedings re- lating to Nortel Networks Corp. e denial of leave was undoubtedly a major catalyst to the global settlement that followed, ending more than eight years of legal manoeuvring at unprecedented expense. e Ontario Court of Appeal, which rarely issues reasons when leave to appeal is denied, saw fit to issue 42 pages of reasons in this case. e court upheld the decision of the Canadian trial judge for the joint Canada-US trial and cited the reasons of the US judge involved. It represents the first appellate confirmation anywhere of an allocation of global sale proceeds based on pro rata principles. Quite apart from the substantive aspects of the case, however, its procedural impli- cations are at least as significant. Former Ontario Chief Justice Warren Winkler de- scribed the proceedings as "one of the most complex trans-national legal proceedings in history" that lacked "any realistic 'liti- gation' option to resolve the dispute." e case, which involved more than 40 Nortel- related companies around the world, pro- ceeded under the supervision of Canada and US bankruptcy courts. Creditors in over 20 countries made claims. D.J. MILLER THORNTON GROUT FINNIGAN LLP There was no jurisdictional basis or formal mechanism for the appellate courts to talk to one another, but it happened. It demonstrated that appellate courts are going to be as open to issuing bold decisions and having another appellate court take that decision and have it impact in their own jurisdiction." " Although cross-border protocols for dealing with insolvency issues have exist- ed for some time, and have worked fairly well, Nortel's complexity made them little more than a foundation on which to cre- ate a process. "is is the first case where | TOP DECISIONS |

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