Court File and Parties

Court File No.: CV-04-263007-CP00 Date: 2023-08-08 Superior Court of Justice - Ontario

Re: Narcise Alex Kakegabon And: The Attorney General of Canada

Before: J.T. Akbarali J.

Counsel: Leslie Ross, for the Representative Plaintiff, Narcise Alex Kakegabon Won J. Kim, Class Counsel Glynis Evans and Isabelle Crew, for the defendant The Attorney General of Canada William B. Henderson and Angela D’Elia Decembrini, for the non-party, Long Lake #58 First Nation

Heard: In writing

Proceeding under the Class Proceedings Act, 1992

Endorsement

Overview

[1] On this motion, I am asked to vary the certification order made in this proceeding to remove class counsel of record, Kim Orr Barristers P.C., and appoint Turan Law Office P.C. as class counsel, as well as order ancillary relief.

Background

[2] This class proceeding concerns the existence of toxic mould in housing on Long Lake No. 58 First Nation’s reserve. In the 1960s, the federal government relocated members of the Long Lake No. 58 First Nation from the southern part to the northern part of the reserve. New housing was constructed between the late 1960s and the early 1980’s. Unfortunately, around the year 2000, toxic mold was discovered in about 50 of the houses that had been constructed.

[3] The claim alleges that band members who had moved into the new housing were exposed to unsafe levels of toxic mould, and some began to get sick. The discovery of the mould led to the evacuation of some households and 45 homes were demolished.

[4] The original representative plaintiff in this litigation, Diane Grant, commenced proceedings in 2004. The action was certified on December 4, 2009. At that time, Kim Orr Barristers P.C. was appointed as class counsel in the certification order issued by Cullity J. of the same date.

[5] Sadly, Ms. Grant passed away. The current representative plaintiff, Mr. Kakegabon, entered into a retainer agreement with Kim Orr on February 11, 2013; he was subsequently appointed the representative plaintiff on February 25, 2014.

[6] An application for leave to appeal the certification decision had been launched by the Attorney General of Canada prior to Mr. Kakegabon’s appointment as representative plaintiff. Shortly after he was appointed, on March 17, 2014, the leave application was dismissed.

[7] It appears that not much transpired thereafter. The only step Mr. Kakegabon is aware of is the amendment of the statement of claim to remove certain claims.

[8] On August 5, 2022, Mr. Kakegabon wrote to class counsel to terminate his retainer with them. He deposes that he lost confidence in their ability to advance the litigation given the lack of steps taken to move the litigation forward. Mr. Kakegabon is concerned because approximately half of the class members have passed away since the certification of this proceeding.

[9] Mr. Kakegabon retained Turan Law Office P.C. on September 7, 2022, to act as class counsel. Ms. Turan served a Notice of Change of Lawyers, and now moves under ss. 8(3) and 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6, and on the basis of the court’s inherent jurisdiction, for an amendment to Cullity J.’s order to remove previous class counsel, and substitute her firm as class counsel.

[10] Under s. 8(3) of the CPA, the court may amend an order certifying a proceeding as a class proceeding. Under s. 12 of the CPA, the court may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination, and may impose such terms as it considers appropriate.

[11] Neither the defendant, class counsel, nor the non-party, Long Lake No. 58 First Nation, oppose the relief sought.

[12] In Fantl v. Transamerica, 2009 ONCA 377, the Court of Appeal set out the approach a court ought to take when called upon to review a representative plaintiff’s choice of class counsel. In that decision, the proceeding in question had not been certified, but I see no reason why the rationale of the decision would not apply equally to a certified proceeding such as the one before me.

[13] When reviewing a representative plaintiff’s choice of counsel, the court considers the competence of counsel, whether the choice was based on any improper considerations, and whether the choice results in any prejudice to the class: Fantl, at para. 11.

[14] In this case, I have no concerns that the proposed class counsel is not competent. Ms. Turan and others on the team, including Mr. Kalmakoff, have relevant and important experience litigating complex Aboriginal law proceedings concerning treaty and aboriginal rights. In addition, the class counsel team includes counsel with specific class proceedings expertise. Mr. Kakegabon deposes that proposed class counsel have been responsive and appreciate the urgency with which he wants to advance the litigation. I have no concerns about the competence of proposed class counsel to litigate this proceeding.

[15] Nor am I concerned that Mr. Kakegabon’s choice of counsel was based on any improper considerations. I accept that Mr. Kakegabon is seeking counsel experienced in Indigenous law and in class actions to advance this litigation as quickly as possible, and for that reason has sought out the class counsel he proposes.

[16] Finally, there is no prejudice to the class that results from a change in class counsel. The proceedings unfortunately remain at an early stage, procedurally, and proposed class counsel are capable of advancing the litigation.

[17] I am mindful of the Court of Appeal’s direction in Fantl, at para. 50:

Unless this inquiry [into the representative plaintiff’s choice of counsel] reveals something unsatisfactory to the court, it ought not to interfere with the choice of counsel made by the plaintiff. The court is not a substitute decision-maker for the plaintiff in the litigation. Accordingly, any intervention based on its supervisory jurisdiction must be limited to situations where there is cogent evidence that steps taken may have an adverse impact on the absent class members.

[18] Here there is no reason, and it would be inappropriate, for the court to interfere with Mr. Kakegabon’s agency as representative plaintiff to retain the class counsel he has chosen.

[19] Mr. Kakegabon’s motion is granted. Order to go in accordance with the draft I have signed.

J.T. Akbarali J.

Date: August 8, 2023