The Lawyers Weekly - February 10, 2012

Billions of dollars invested, not a penny lost.

The Ontario Court of Appeal has set out guidelines for determining whether a proposed class action should be certified because it is “preferable” to alternative procedures for resolving the class members’ claims.

On Jan. 27, Chief Justice Warren Winkler (backed by Justices Gloria Epstein and Gladys Pardu, sitting ad hoc) upheld the Divisional Court’s decision last year to certify a multimillion-dollar class action launched by investors against CI Mutual Funds Inc. and AIC Ltd.

The plaintiffs claim they lost
money when the defendants
allegedly permitted some short-
term investors to engage in prof-
itable “market timing” of their
purchases and sales in certain
mutual funds under the com-
panies’ management.

In unsuccessfully appealing the
certification, the defendants urged
that a class action was not the
preferable procedure because the
investors are already entitled to be
compensated by a $205-million
settlement agreement between the
defendants, three other mutual
fund companies, and the Ontario
Securities Commission (OSC).

The representative plaintiffs argued, however, that the OSC’s

CRISTIN SCHMITZ

Sweeping ban is set aside

See Certified Page 9

Finding common ground among different cultures

PAGE 10

ENTERTAINMENT LAW

Television contestants waive away rights with depiction releases

THE LAWYERS WEEKLY

Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002

The Ontario Court of Appeal has admonished trial judges not to hand out anonymity orders, sealing orders, publication bans or other privacy orders in divorce cases, unless after “close scrutiny” they determine there exists “a serious risk to the proper administration of justice.”

“

RECRUITING

THE LAWYERS WEEKLY

In a powerful expression of the open court principle in family law, on Jan. 24 Justices David Doherty, Robert Armstrong, and Alexandra Hoy set aside a sweeping sealing order and publication ban granted last year to M.E.H., the estranged wife of serial killer Russell Williams. The orders shielded the identity of the wife and her employer, and her divorce proceedings, from media reporting and public scrutiny. (At press time her identity, while previously widely published, was still subject to 14-day post-judgment publication ban.)

“The evidence cannot support [the lower court’s] conclusion that the orders were necessary to prevent a serious risk to the proper administration of justice.”

Justice David Doherty, ontario Court of appeal

LEGAL E-BOOKS

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

law today is that the notice has to
be given to the media on any
non-publication application,
including sealing orders.”
The editor of the Reports of

“The evidence cannot support [the lower court’s] conclusion that the orders were necessary to prevent a serious risk to the proper administration of justice,” Justice Doherty held. “Absent that finding, the orders could not have been made under the controlling jurisprudence.”

Roy GRoGan foR The LawyeRs weekLy

The Ontario Court of Appeal’s recent judgment on sealing orders and publication bans is ‘a huge endorsement of the open court principle,’ says media lawyer Richard Deaden, seen here at the Ottawa Courthouse.

Family Law, Philip Epstein of Toronto’s Epstein Cole, suggested that the Court of Appeal’s judgment will rein in the growing practice of judges granting anonymity orders on consent in family law cases in Ontario.

Digital offerings from legal publishers still in early stages

THE LAWYERS WEEKLY

Justice Doherty elaborated on the rigorous analytical approach judges should follow when applying the Supreme Court’s Dagenais/Mentuck test to determine whether non-publication, sealing, or other privacy orders should be granted in any case.

Media lawyer Richard Dearden
of Ottawa’s Gowling Lafleur
Henderson, who argued the
appeal for the Ottawa Citizen
and the CBC, called the judg-
ment “a huge endorsement of
the open court principle.”
down you need convincing evi-
dence that the proper administra-
tion of justice would be severely
affected, and you’ve got to prove it
on a convincing evidentiary foun-
dation,” Dearden said.

“Justice Doherty’s judgment says that family law proceedings are as public as every other civil and criminal proceeding in this province, and if you want to shut it

STB_LW_basebar_09_ 11_Layout 1 9/1/11 4:55 PM Page 1

He said the open court rule
applies, even when parties ask,
on consent, for anonymity orders,
sealing orders, publication bans,
or to exclude the public from the
courtroom. “In my opinion the
Epstein added that this is not
necessarily a good development,
in his view. “I think if you polled
the family law Bar [in Ontario]
they would be in favour of the
Quebec and British Columbia
approach of [using the parties’
initials on] cases,” he said. “It
doesn’t seem to me that the fact
that the parties want access to the
courts should penalize them by
having all of the intimate details
of their life published. If the

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

See Ban Page 8

PUBLICATIONS MAIL AGREEMENT NO. 40065517

PAGE 15

Success hinges on recruitment of Gen Y

PAGE 21

PAGE 23

The title insurer that puts you front row, centre

Putting the legal community front and centre has made us the #1 choice with Canadian
lawyers/notaries for over a decade. While other title insurers go head to head with
you for your business, Stewart Title does not support programs that reduce or eliminate
the lawyer’s/notary’s role in real estate transactions. Instead, we focus on what matters
to you:
• unsurpassed policy coverage
• competitive pricing
• underwriting expertise
At Stewart Title, we keep real estate transactions where they belong – in your office!