The Lawyers Weekly - September 17, 2010

THE LAWYERS WEEKLY
September 17, 2010 | 11

While much has been written about class proceedings improving access to justice, there is little empirical evidence to demonstrate that judicial class proceedings are the best way of resolving a large number of disputes that might not be pursued individually. Indeed, there is increasing evidence that class proceedings are exceedingly slow and settlement take-up rates are correspondingly low. Does arbitration offer a better way forward?

Consider, as an example, the recent decision of the Ontario Court of Appeal in Griffin v. Dell Canada Inc., [2010] O.J. No. 177, which dealt yet again with the issue of whether a dispute should be heard by an arbitrator when a plaintiff or its counsel would prefer to have the matter heard as a class proceeding.

In Griffin, the representative plaintiff leased a Dell Inspiron notebook, primarily for business purposes. Before leasing the computer, Griffin looked at various products on Dell’s website and agreed to be bound by

RANDY
PEPPER

Dell’s terms and conditions of sale, which included an arbitration clause requiring that all disputes be submitted to arbitration. The statement of claim, issued in January 2007, alleged that in 2006 Griffin’s computer began to experience overheating problems and eventually failed. It asked for certification as a class proceeding.

Dell sold 118,629 of the Inspiron notebook computers at a price of approximately $2,000 each. The plaintiff sought to certify a national class of purchasers who bought Dell notebook computers between March 2003 and May 2005. In response, Dell sought an order staying the action pursuant to the arbitration clause and the Ontario Arbitration Act, 1991.

On the certification motion,
Madam Justice Lax found that
it was “fanciful to think that any
claimant could pursue an indi-
vidual claim in a complex prod-
ucts liability case.” She refused
Dell’s request to stay the class
action in favour of arbitration
and granted a certification
order conditional on the plain-
tiff filing an improved litigation
plan. Significantly, she also gave
the plaintiff leave to amend to
add a second representative
plaintiff who fell within the def-
inition of “consumer” under the
Ontario Consumer Protection
Act, 2002 (CPA) which bans
mandatory arbitration clauses
in consumer agreements.

“

One of the plaintiffs’
counsel...reported
take-up rates of less
than one per cent for
two of four settled
class actions.

the Arbitration Act.

So, three years after Griffin issued his statement of claim, the action has been certified as a class proceeding. Perhaps, in another three or four years, some of the folks who bought Dell notebook computers (between March 2003 and May 2005) might have a judicial determination of whether they are entitled to a remedy. And, by 2013 or 2014, if the plaintiffs succeed or achieve a settlement in their action, how many of the

118,629 purchasers will still
have their notebook computers,
be around to collect on a judg-
ment or take up a settlement?

In her paper, “Access to Justice for the Masses; A Critical Analysis of Class Actions in Ontario” (available at https:// tspace.library.utoronto.ca), Jas-minska Kalajdzic noted that, despite the many judicial pronouncements about the benefits of class proceedings, there is little empirical evidence about settlement take-up rates. She noted that one of the plaintiffs’ counsel she interviewed reported take-up rates of less than one per cent for two of four settled class actions. This is consistent with an April 23 article in The Lawyers Weekly by Luis Millan, “Class action conundrum,” which reported that take-up rates of class action settlements were routinely low.

Most consumer disputes could be resolved much more quickly and effectively through arbitration than litigation. Some arbitration rules can present an unfair deterrent to

See Class Page 13

‘The process by which we seek to discover truth may skew the result’

Cross-examination

Continued From Page 9
As a final example, the fact that wit-
ness evidence is presented orally, but is
often evaluated in written form, creates
an additional layer of artificiality which
removes the testimony of witnesses from
the real world of conversational norms.
John Henry Wigmore, the original
author of the leading American text on
evidence, wrote “Cross-examination is
the greatest legal engine ever invented
for the discovery of truth.” However, the
rest of that famous quote presents an
important qualification: “You can do
anything with a bayonet except sit on it.
A lawyer can do anything with cross-
examination if he is skilful enough not to
impale his own cause upon it.”
It is generally understood, although it
is not often said, that the skill of the
cross-examiner is not actually directed
at finding the objective truth. Rules of
cross-examination that are taught in
most advocacy courses, such as “don’t
ask a question to which you do not
already know the answer” and “beware
of asking one question too many,” would
not have taken humanity very far if
applied to any of the arts or sciences that
are associated with the quest for truth.

“The skill of the cross-
examiner is not actually
directed at finding the
objective truth.
will be the follies of another age. But it is
well for us to remember that the process
by which we seek to discover truth may
skew the result and defeat the very pur-
pose of the enterprise.
Our system of justice is based on the
belief, not shared by all legal cultures,
that the truth will emerge from adver-
sarial interaction between two or more
self-interested parties when judged by a
relatively passive neutral observer. Any
parent who has settled a dispute between
quarrelling children will be aware that
this technique has its limitations.

William G. Horton is an independent
arbitrator and mediator of commercial
disputes. He practises in Toronto.

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Aboriginal Law

Family Law Family Law

FOCUS

All’s fair in love and divorce

Thetwo-dayevent,heldinJan-
uary(thepeakmonthfordivorces),
featuredinformationsessionsona
rangeoftopics relatedtothe“D”
word, suchasseparation, parenting
duringand after divorce, dealing
withstress, propertyandpension
issues.Severallawfirmshadbooths
attheeventandtheirlawyersmade
presentationsonarangeoftopics.
For most law firms, however,
participating in Canada’s first
Divorce Fair cameafter someseri-
ouscontemplation—andconsider-
ablemedia attention. “This was a
fair unlike those we attended as
children,” said Leisa Mac Intosh, a
family mediator and lawyer with
MacIntosh, MacDonnell & Mac-
DonaldinNewGlasgow.
“The name itself caught our
attention,” she noted. “It was
attractiveandeffectiveingetting
themessageacross.Theflippant
name either grated on one’s
senses or provoked a giggle,
because most know that divorce
tends to be a painful and high-
stress,privateprocess.”
“Initiallywesaid‘noway,’”said
SandraBarss,afamilylawlawyer
with McGinty Law in Halifax.
“Then we started hearing more
about this andreading aboutthis.”
“Welikedthephilosophybehind
it—gettheinformationoutthere
sopeopleknowwhatthey’reenti-
tledtoandwhatthey’reresponsible
for,”sheadded.
Educationwasattheheartof

Tribunal reinstates
grandmother’sbenefits
CHRISTOPHER GULY
DONALEEMOULTONHALIFAX

Forroughly40percentofCana- dians, “until death do us part” is wishful thinking. Nearlyfour out of every 10 marriages in this country willendindivorce,yetdiscussions about the implications and the impactoftenhappeninbackrooms andinhushedconversations. The Legal Information Society of Nova Scotia (LISNS) brought the issue out into the open with whatisbelievedtobeNorthAmer-ica’sfirstDivorceFair.“Wewanted tofillaneedsgap.Weknowfrom the calls we get and visits to our website that family law is the biggest topic,” said LISNS Executive

Fish weirs,
clam gardens
offer proof of
aboriginal title

Director Maria Franks.

It’salsoatopicthat,formany,
is narro wly defined, she noted.
“When people think about
divorce, theythinkaboutalawyer
but not other issues, issueslike
propertyandpensions.”
Toronto lawyer Douglas Stewart,
who successfullyargued thecase
on behalf ofthe appellant.
Thecase involved a74-year-old
Oshawa grandmother—the
unnamed appellant —who, with
her same-aged husband, had been
caring for their grandson, identi-
fied as D.V., since1999. Theboy’s
father has substanceabuseprob-
lems, whileD.V.’s mother has never
been involved in his life. In light of
thatsituation, thechild’s grand-
parents obtained acustody agree-
ment from his parents and applied
to Ontario Works for temporary
careassistance, which was granted.
However, in November 2008,
an OntarioMinistryofCommun-
ityand Social Services caseworker
informed thegrandparents— both
on an annualincome ofabout
$25,000 —that following areview
oftheir circumstances and eligi-
bility, they no longer qualified for
the allowance. (The benefits
included $230 per month and
drug and dentalcoveragefor their
grandson.) Among the reasons
cited were that the arrangement
had “gonebeyond being tempor-
aryto theextreme,”sinceD.V. had
been in thecareof his grandpar-
ents for 11 years. The results ofthe
so-called consolidation verifica-
tion process review— arelatively
recent and moredetailed assess-
ment of a recipient’s circum-
stances and eligibility—also
determined therewas no“reason-
ableprospect” thethen-15-year-
old would be returning to thecare
of either oneof his parents, and
thatallaspects ofthe grandpar-
ents’ relationship with him were
the same as thoseof parents.
While the grandmother
Is it that no onereads the Spousal
Support Advisory Guidelines (SSAG) beyond chapter 11?
Thatchapter 12 on exceptions somehow went missing
from everyone’s copy? How do we explain that, fiveyears
after thereleaseof the original draftproposaland almost
twoyears after thefinal version, lawyers and judges still
ignore theSSAG exceptions?
It remains oneof the great mysteries of theSSAG so
far. The two formulas for amount and duration apply to
the wide rangeof “typical” spousal support cases. But, as
we all know, there arelots of atypical or unusual cases in
spousal support law, and the SSAGexceptions are
intended to recognizecategories of cases whereoutcomes
can or should depart from theformula ranges.
How can you tellwhen an exception mightapply?
First, when your familylaw intuition tells you that the for-
mula outcomes just don’t seem right — theamount is too
lowor toohigh, or theduration too short. That gut feeling
should send you quicklyto chapter 12, to rootthrough the
list ofexceptions. Second, if you lack that “intuition,”then
your antennae should go up when the opposing lawyer
really, reallylikes the formulaoutcomes.
In chapter 12, you willfindthis summary list of
exceptions:

(1) Compelling financial circumstances in theinterim An Ontario Social Benefits Tribunal decision, released earlier this year, has openedthedoor for temporary caregivers to challenge thecancellation oftheir benefits by mu nicipal social services administrators, according to

MURRAY BROWNE

DREW MILDON

Provincial governmentlawyers and officials are typically quick to dismiss the possibility of aboriginal title to foreshore and submerged lands. This attitude is apparently based on an assertion that foreshore and submerged lands are “public” (and therefore controlled by the provincial government) and that First Nations could not possibly have owned or physically occupied foreshore or submerged lands historically. Despite these assumptions, ownership of foreshore and submerged lands was an integral aspect of the common law histor-ically.Archaeologicalanalysisof First Nation fish weirs and clam gardens provides extensive evidence of title to foreshore and waterlots, both under the common law and the law of aboriginal title. Many First Nations have strong aboriginal rights and title claims to foreshore and waterlot areas, and the provincial government should deal with these claims before proceeding with further privatization.

SeeGrandmother Page 17

How climate change intersects with Inuit land claims agreements

See Fair Page10

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ZACK BLANTON / ISTOCKPHOTO.COM

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NEXT WEEK

LUISMILLAN

FORGOTTEN?

JEREMYBRUNEEL/ STOCKO.CC

Protecting assessors
from disgruntled parents

The SSAG Exceptions

So what is it?

Professional bodies for lawyers
andjudgesscreenoutmanycom-
plaints that are frivolous or vexa-
tious. Law societies, for example,
are especially cautious in dealing
withcomplaintsbyfamilylitigantsagainst
thelawyersfortheirformerspouses,rec-
ognizing that most such complaints are
unfounded, or raise issues that could be
thesubjectofanappealratherthanapro-
fessionaldisciplinecomplaint.
However,mentalhealthprofessionals
who perform assessments for
family proceedings may be sub-
jectedtocomplaintstotheirpro-
fessional bodies without any
screening. While un warranted
proceedings are eventually dis-
missed,unfoundedcomplaintsto
regulatory bodies are a signifi-
cant factor in driving mental
healthprofessionalsawayfrom
acting as assessors, increasing
the delay and expense involved
inobtainingassessments.
Court-appointed mental health profes-
sionalsoftenplayacriticalroleinthereso-
Family law is an area of professional
practice with high levels of complaints,
not only for lawyers, but also for judges
andpsychologists.Thisreflectsnot
alackofprofessionalcompetence,
but rather the fact that this is an
emotionally intense area, with
unsuccessfullitigantswhomaybe
more inclined to unjustifiably
“blame” various professionals for
outcomesthanacceptresponsibil-
ityfortheirownsituations.

In the midst of grappling with the impact of global warmingon the Arctic, with aseemingly growing list of nations laying competing claims to maritime access to the Northwest Passage and the riches lying beneath the forbidding landscape, the Inuit are looking to their land claims agreements with the government of Canada to address the environmental challenges faced by their communities. With their way of life under siege, the Inuit have already begun testing the flexibility and fluidity of northern land claims agreements, having filed a $1-billion suit against the federal government in what may foreshadow longdrawn-out legal battles, spurred in part by shifting environmental and climatic changes in the north.

Parents exploit discipline process



Cliniciansandfamilyjustice

NICHOLAS
BALA
See Assessors Page13

(Agreement). The Agreement identified the geographical area of the

It remains to be seen whether the court will embrace the view long espoused by the Inuit, who view land claims agreements as working documents, which can and should be adaptable to changing circumstances in the North...

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Northwest Territories as the Nunavut Settlement Area, and on Apr. 1, 1999 the area became the Territory of Nunavut. NTI, a body established to assist in the implementation of the land claims agreement negotiated by the Inuit and the government of Canada, coordinates and manages Inuit responsibilities set out in the Agreement, while ensuring that the federal and territorial governments fulfill their obligations. While the specific claims in the NTI suit, which is now at the discovery stage, do not specifically refer to climate change, an interpretative approach is being advocated by the Inuit that will encourage examination of the issue, said Dougald Brown of Nelligan O’Brien Payne in Ottawa, who is representing NTI. Under the Agreement, the federal government was required to establish a Nunavut Wildlife Management Board that would implement and monitor a plan to oversee eco-

ROLLIE THOMPSON

Nunavut Tunngavik Inc. (NTI) filed a statement of claim against the Attorney General of Canada nearly four years ago for breach of contract, alleging that the federal government failed to live up to its obligations and has therefore violated the Nunavut Land Claims Agreement Act

In a suit that will test competing
visions of the interpretation and
nature of land claims agreements,
Many Indian reserves in B. C.
were allocated based on access to
the fisheries. In his book, Landing
Native Fisheries, Douglas Harris
provides a detailed history of a
reserve-creation process guided
by the principle that white settlers
wouldpursue a land-based econ-
omy and the marine-based econ-
omy would be left to First Nations.
Indeed, reserves were often
smaller in B.C. than elsewhere in
Canada because of the expecta-
tion and promise that First
Nations would be pursuing fish-
ing and not farming (see Pasco v.
C.N.R., [1986] 1 C.N.L.R. 34).
Unfortunately, the government
parcelled out the land to settlers

See SSAG Page16

See Weirs Page 17 See Climate Page 17

• Family • Aboriginal Law

Gus Richardson is pleased to offer his services as an arbitrator and mediator throughout the Maritimes and Ontario from his Halifax practice, Ad+Rem ADR Services. + With over 20 years litigation experience at all levels of courts in Nova Scotia and Ontario, Gus is also a Nova Scotia Small Claims Court adjudicator. Gus brings those skills to his practice as an arbitrator and mediator in labour, insurance, personal injury, commercial and condominium disputes.