Court File and Parties

Court File No.: CV-15-53262500-CP Date: 2024-01-04 Ontario Superior Court of Justice Superior Court (Class Action Division) Canada Province of Québec District of Montréal No.: 500-06-000781-167

Between: CHRISTOPHER BRAZEAU and DAVID KIFT, Plaintiffs And: ATTORNEY GENERAL OF CANADA, Defendant Proceeding under the Class Proceedings Act, 1992

Between: ARLENE GALLONE, Plaintiff c.: PROCUREUR GÉNÉRAL DU CANADA, Defendant

And Between: Court File No.: CV-17-570771-00CP JULLIAN JORDEA REDDOCK, Plaintiff And: ATTORNEY GENERAL OF CANADA, Defendant Proceeding under the Class Proceeding Act, 1992

Date hearing/d'audience: In writing

Counsel: James Sayce, Gerry Antman, and Karine Bédard for the Plaintiffs in Brazeau and Kift v. Attorney General of Canada H. Michael Rosenberg, Jacob Klugsberg, and Adam H. Kanji for the Plaintiff in Reddock v. Attorney General of Canada André Lespérance and Clara Poissant-Lespérance for the Demanderesse in Gallone c. Procureur Général du Canada Negar Hashemi, Éric Lafrenière, Susan Gans, and Lindy Rouillard-Labbé for the Defendant ou Défenderesse in: (a) Brazeau and Kift v. Attorney General of Canada; (b) Reddock v. Attorney General of Canada; and (c) Gallone c. Procureur Général du Canada

Reasons for Decision/Jugement – Part 9

MASSE, J. and PERELL, J.

A. Introduction

[1] Pursuant to the Class Proceedings Act, 1992 [1], Justice Paul Perell of the Ontario Superior Court of Justice is case managing the Ontario class actions, Brazeau v. Canada (Attorney General) and Reddock v. Canada (Attorney General).

[2] Pursuant to the Québec Code of Civil Procedure [2], Justice Chantal Masse, of the Superior Court of Québec is case managing the Québec class action, Gallone c. Canada (Attorney General) [3].

[3] This is Part 9 of our jointly written decision or judgment in Brazeau, Reddock, and Gallone. While it is a jointly written decision, it may and should be read as separate decisions of the Ontario Superior Court of Justice and of the Superior Court of Québec.

[4] In Part 1, we prepared a Draft Distribution and Individual Issues Protocol (“DIIP”). The Protocol was a provisional decision. We invited the parties to make submissions in writing. In Part 2, we approved the DIIP. After the release of our Part 2 decision, the parties had further consultations about the Protocol, including discussions with the administrator. Those further consultations resulted in further revisions, which we made in Parts 3, 4, 5, 6, 7, and 8. Most of the revisions to the DIIP were made on consent motions. There were also several consent or unopposed motions, for which we issued Orders but did not prepare Reasons for Decision.

[5] This decision is Part 9. This time there is a bitterly contested motion about the part of the DIIP that addresses what are reply position statements in the procedure for Track 2 Claims under the Protocol.

[6] On this motion to revise the Protocol, Canada seeks the following Order:

a. An order confirming that reply submissions filed by Track 2 Claimants are limited to responding to Canada’s arguments regarding mitigating factors and/or Canada’s arguments rebutting the presumption of causation, pursuant to sections 10.32 and 10.36(h) of the Protocol and pursuant to an agreement between the parties to a limited expansion of the permissible arguments on reply;

b. An order mandating Claimants to withdraw the replies or parts of the replies that exceed the scope described in paragraph (a), and which are listed in Appendix 1 of the Affidavit filed in support of this motion, within five days of the Courts’ order;

c. An order amending section 10.32 of the Protocol to read as follows:

10.32 Claimants have the right to object to or to make submission with respect to any mitigating factors and arguments rebutting the presumption of causation raised by Canada before the Manager/Expert (pursuant to 10.36(h))

d. An order amending section 10.36 (e) of the Protocol to read as follows:

10.36 (e) Within fifteen (15) days of the notification of 10.36 (d), if no reply is permitted under 10.36 (h), or within twenty (20) days of the Claimant’s filing of a reply under 10.36 (h) or of the expiration of the deadline to notify Canada of their intention to object under 10.36 (h), the parties will notify each other and the Administrator whether or not they intend to engage in cross-examinations, who they intend to examine, and whether these examinations will be oral or written (with the exception of expert cross-examinations, pursuant to 10.36(e)(ii))

e. An order amending section 10.36 (h) of the Protocol to read as follows (amendments are underlined):

10.36 (h) Within fifteen (15) days of the completion of 10.36 (d) , if Canada submits that the damages award should be reduced for one or more mitigating factors (pursuant to 10.31), or if Canada makes arguments rebutting the presumption of causation pursuant to 10.19, the Claimant may notify Canada that they will object (pursuant to 10.32). Within thirty (30) days of notifying Canada, the Claimant will submit a Reply consisting of an affidavit and/or position statement, no longer than ten (10) pages in total, and limited only to responding to Canada’s submissions on the mitigating factor and rebuttal of the presumption of causation . Any affidavit filed by the Claimant could be subject to cross-examination by Canada according to the terms of s. 10.36 (e-g) within 20 days of its filing .

[7] For their part, on this motion, Class Counsel in Brazeau, Reddock, and Gallone seek an Order modifying the right to reply in the Protocol as follows:

10.15 The Administrator will assign a Claim that includes a Track 2, Box 3 selection to a Manager/Expert within ten (10) days of confirmation that no cross-examinations will be conducted or upon receipt of the parties’ Addendums (if any) or within ten (10) days of receipt of the Claimant’s Reply to mitigating factors (if any) (pursuant to 10.36(e)-(h)), whichever is later. The Administrator will also provide the assigned Manager/Expert with access to the Claimant’s Database and all materials filed by the parties pursuant to 10.36.

(d) The Administrator will upload Canada’s affidavits (if any) and submissions into the Database immediately upon receipt and notify the parties.

(f e ) Within fifteen (15) thirty (30 days) of the completion of ( c g) (d), if Canada submits that the damages award should be reduced by one or more mitigating factors pursuant to 10.31), the Claimant may notify Canada that they will object (pursuant to 10.31). Within thirty days of notifying Canada, the Claimant will may submit a Reply consisting of an affidavit and/or position statement no longer than ten (10) pages in total, and limited only to responding to Canada's submissions on the mitigating factor limited to new issues raised by Canada in its submissions . Any affidavit filed by the Claimant could be subject to cross-examination by Canada within 20 days of its filing in accordance with (f) .

(f) The Administrator will upload the Claimant's reply (if any) into the Database immediately upon receipt, and notify the parties .

( e g) Within fifteen (15) days of notification pursuant to 10.36( d f ), the parties will notify each other and the Administrator whether or not they intend to engage in cross-examinations, who they intend to examine, and whether these examinations will be oral or written (with the exception of expert cross-examinations, pursuant to 10.36( e g ) (ii)):

i. Any such examinations will be limited to the equivalent of sixty (60) minutes of questions per party for each examination.

ii. Where examinations of experts are conducted, such examinations will be completed by way of written interrogatories, unless the parties consent to oral examinations.

iii. All cross-examinations must be completed within sixty (60) days of being notified of the intention to cross-examine.

iv. For written interrogatories, the questions must be provided to the opposing party within thirty (30) days of being notified of the intention to cross-examine. Responses to written interrogatories must be provided to the cross-examining party within thirty (30) days of receipt of the questions. All responses to written interrogatories must be provided in the form of a sworn/affirmed statement (before a Commissioner of Oath) from the individual being cross-examined.

( f g ) Within sixty (60) days of any election to engage in cross-examinations, if one is made, the parties must also file with the Administrator and provide to each other transcripts.

(g h ) Within fourteen (14) days of the filing of all transcripts and written interrogatories, the parties may also file with the Administrator and serve on each other concise Position Statements Addendum on Cross-Examinations of no more than ten (10) pages.

10.37 The Manager/Expert will consider the parties’ submissions (including Position Statements, supporting evidence, Addendum on Cross-Examinations, and Reply on mitigating factors ), and explain in their report how the submissions impacted their findings and recommendation.

[8] For the reasons that follow, we deny the requests of both Canada and of Class Counsel.

[9] Instead of the requested revisions to the DIIP for Track 2 claims, we direct the parties to revise the DIIP to provide that:

a. if a Claimant delivers a reply, Canada, may deliver a sur-reply consisting of an affidavit and/or position statement no longer than ten (10) pages in total within thirty (30) days.

b. if a Claimant delivers a reply and Canada delivers a sur-reply, then Canada shall pay the Manager/Expert $10,000 for a Track 2 decision and report.

[10] The parties are also directed to make the necessary ancillary revisions to the DIIP. Visualize, any sur-reply affidavit filed by Canada is to be subject to cross-examination by the Claimant.

B. Discussion and Analysis

[11] The DIIP provides for three tracks for claims for compensation. Track 2 was designed to “[s]treamline the Track 2 process in a manner that: benefits class members by stipulating their damages award in a fair and efficient manner; reduces the fees incurred by Class Counsel and the Attorney General of Canada; [and] reduces the burden placed on the Managers/Experts in adjudicating Track 2 claims.” [4]

[12] Pursuant to section 10.36 (h) of the DIIP, Claimants have a right of reply in some Track 2 claims to respond to Canada’s arguments with respect to causation or with respect to mitigating factors raised by Canada, if any.

[13] More precisely, for Track 2 claims under Box 2 and Box 3, the process is set out in very specific detail in s. 10.36 of the DIIP. A Claimant can file an affidavit and/or one expert report and the Claimant must file a position statement to support his or her claim. In response, Canada can file an affidavit and/or one expert report and Canada must file a responding position statement.

[14] For each of these filings, a page limit is imposed on the parties. Limited cross-examinations are permitted, and, in cases where cross-examinations take place, transcripts are filed with the Manager/Expert.

[15] Sections 10.32 and 10.36 (h) of the Protocol limit the right of reply by a Claimant to responding to mitigating factors. At the request of Class Counsel, Canada recently agreed (October 20, 2023), to a right of reply about causation when a presumption applies pursuant to s. 10.19 of the DIIP. (If the presumption of causation does not apply, Claimants must make their arguments on causation in their original position statement.)

[16] These procedural provisions were a negotiated compromise between the parties. We have been told that Canada’s original negotiating position was that there should be no reply statements for Track 2 claims. We have not adjudicated, because we were not asked to do so, whether these negotiated provisions are fair.

[17] Further, these terms of the DIIP were negotiated without the benefit of any actual experience with the processing of claims. Now that Track 2 claims are being litigated, Canada bitterly complains that Claimants are including a broad range of arguments without any regard whatsoever to the limitations prescribed by the Protocol. Canada submits that of the 34 replies filed as of November 23, 2023, 31 replies are out of scope and include arguments, amongst other things, about; (a) the number of days to be considered in Track 2, Box 1; (b) degradation of level of functioning to be considered in Box 3; (c) whether or not a diagnosis is established; (d) new diagnosis; and (e) credibility.

[18] For their part, Class Counsel bitterly complain that Canada in its response to the claims is raising a host of issues that it ought not for a variety of reasons be raising and that these issues cry out for a reply from the Claimant.

[19] Class Counsel bitterly complains that Canada is including a broad range of arguments without any regard whatsoever to the limitations imposed on it by the Protocol. Class Counsel accuse Canada of: (a) systematic re-litigation of issues already determined by summary judgment hearings; [5] (b) raising uncontemplated new issues; (c) misdescribing the Protocol; (d) introducing new documents that were not previously disclosed; (e) adding a temporal requirement to the class member definition in Brazeau; (f) elevating the standard of proof for diagnosis beyond the balance of probabilities; and, (g) seeking to undermine its own medical records, which makes up most of the evidentiary basis for the Track 2 claims. Class Counsel says that Canada is depriving the Claimants of natural justice and procedural fairness.

[20] Without saying it, Class Counsel is insinuating that Canada has pulled off a procedural trick of limiting reply and that Canada is not acting in good faith by circumventing issue estoppels and by taking the Claimants by surprise.

[21] For present purposes, it is not necessary to adjudicate the truth of these bitter counter-allegations. As we evaluate the situation that has been gained through the actual experience of employing the protocol, it appears that neither party is reducing the fees incurred by Class Counsel and the Attorney General of Canada and reducing the burden placed on the Managers/Experts in adjudicating Track 2 claims.

[22] The design of Track 2 is for fair, efficient and proportionate litigation that accords with the standards of procedural fairness, which as explained by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [6], is very much a contextual matter depending on a variety of facts.

[23] In the immediate case, it was fair, efficient, and proportionate to impose a limited right of reply, and that was the negotiated choice of the parties. There should be no backtracking on this provision.

[24] However, it is not fair, efficient, and proportionate when either party abuses the procedural rights that were approved by the courts of Ontario and Québec. If Canada is abusing the right of response and the Claimants are abusing their limited right of reply, then unfortunately, the remedies proposed by either party provide no solution to the problems.

[25] In our opinion, the appropriate revision to the DIIP is for it to provide that:

a. if a Claimant delivers a reply, Canada may deliver a sur-reply consisting of an affidavit and/or position statement no longer than ten (10) pages in total within thirty (30) days.

b. if a Claimant delivers a reply and Canada delivers a sur-reply, then Canada shall pay the Manager/Expert $10,000 for a Track 2 decision and report.

[26] When a sur-reply is delivered, the increased payment to the Manager/Expert is fair, and the prospect of this payment will act as a disincentive for the circumstances that create out of scope replies and then sur-replies.

[27] Neither party should be permitted to play tricks to gain a march on the opponent. We, of course, urge the parties to prosecute and defend the claims in good faith, and further experience with claims may resolve the start-up problems. However, the remedy for the abuses of procedure, be they causes or effects, is not to be found in the cumbersome inefficient, expensive proposals of either party. The remedy in the immediate case is to keep the limitation on replies as set out in the Protocol but to allow Canada a right of sur-reply. Then, the Manager/Expert will have a fair paper record to resolve Track 2 claim.

C. Conclusion

[28] For the above reasons that follow, we deny the requests of both Canada and of Class Counsel. Instead of the requested revisions to the DIIP for Track 2 claims, we direct the parties to revise the DIIP as set out above.

[29] The parties are also directed to make the necessary ancillary revisions to the Protocol. If there is a dispute about the drafting, the matter can be resolved on a motion in writing to settle the terms of the Order for the Ontario court and for the Québec court.

[30] We make no Order as to costs.

Masse, J. Perell, J.

Released: January 4, 2024

Footnotes

[1] S.O. 1992, c. 6. [2] CQLR, c. C-25.01. [3] C.S.Q Court File No.: 500-06-000781-167. [4] Brazeau v. Canada (Attorney General), 2022 ONSC 6920, para 10. [5] Class Counsel submits that there are issue estoppels about: (a) voluntary placements; (b) criminal record; (c) effect of duration of confinement; and (d) nature of mental health assessments and records. [6] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.