Regulating the Self-Regulated Profession: The Roma Refugee Class Actions

By Karly Lyons

November 1, 2019

On August 20, 2019 motions to certify three class proceedings for the purpose of settlement came before Justice Perell of the Ontario Superior Court. All three lawsuits were against immigration and refugee lawyers and alleged professional negligence. The claims involved Roma refugee claimants fleeing a far-right organization in Hungary called the Hungarian Guard.  All of the class members had hired either Viktor Serhey Hohots, Joseph Stephen Farkas or Erzsebet Jazi to file their refugee claim and all were denied refugee status. The class members all advanced the following common questions: (1) did the Defendants owe a duty of care to the class; (2) did they breach this duty of care; and (3) did they owe a fiduciary duty? Justice Perell certified the three actions as class proceedings.

Mr. Istvan Horvath is one of the representative plaintiffs. According to the Statement of Claim filed by class counsel Flaherty McCarthy LLP, Mr. Horvath was a Roma refugee claimant who arrived from Canada in 2009. He alleged after one initial meeting with counsel a different individual attended the hearing and was unprepared to adequately proceed. Mr. Horvath alleged that as a result of inadequate legal representation, his refugee claim was rejected one month after his initial Refugee Hearing. Fortunately, he was allowed to remain in Canada on Humanitarian and Compassionate Grounds.

Mr. Horvath’s counsel were officially disciplined by the Law Society of Upper Canada (as it then was) in 2015 for abdicating their professional responsibilities. The other representative plaintiffs in the action also had counsel who were disciplined by the Law Society. The disciplinary decisions led to discussion of the vulnerability of refugee claimants and the need for dedicated counsel. These disciplinary proceedings formed the basis of the causes of action in the class actions.

Class actions against lawyers for professional negligence are unusual but not unprecedented. In Ontario, the first such claim was certified twenty years ago. Just this past month a Calgary judge certified a class action against a lawyer by residential school survivors he previously represented, for negligence and charging excessive fees.

A class proceeding is complex and can involve a confluence of laws and procedures. What began as Immigration and Refugee Board decisions then led to official discipline by a self-regulated profession which in turn led to certified and settled class proceedings. The traumatic individual situation of Mr. Horvath led to a more complex resolution than he likely anticipated. This settlement will also surely raise issues surrounding notice as the certified class consists of Roma refugees, many of whom were deported once their refugee claims were rejected and continue to be displaced elsewhere.

Class proceedings based on a cause of action of professional negligence raise important questions about competency of counsel and self-regulation. When counsel is professionally negligent, disciplinary measures of law societies are triggered. However, when negligence is on a large scale with a population who may be deported as a result of the negligence – does self-regulation still work? Had Mr. Horvath (and others in his community) not been allowed to remain in the country on compassionate and humanitarian grounds, would counsel have been disciplined? Will the class ever be properly compensated given their potential geographical dispersal? Is it a failure of self-regulation that the harm done reached a scale where a class proceeding was the appropriate procedure?

The Roma refugee class proceedings remind us of the importance of competent counsel when dealing with vulnerable individuals. They are also unique applications of the class action device to claims of professional negligence in a self-regulating profession.

Expanding the Reach of Class Actions: Administrative Segregation

By Alexandra Lawrence and Karly Lyons
October 1, 2019

According to the Canadian Bar Association, there are currently 295 active class actions in the province of Ontario. These proceedings are wide reaching and affect many Canadians in some way – even if they do not know they are class members.

What kinds of class actions are being pursued? The Law Commission of Ontario’s Report “Class Actions: Objectives, Experiences and Reforms” released in July 2019 includes a breakdown by causes of action since 1993. Almost half of the class actions filed in Ontario since 1993 concern the Securities Act, the Competition Act, and product liability. Another sizeable chunk of litigation (around 30%) includes consumer protection, employment/pensions, franchise, insurance, and privacy.

Comparatively few class actions are brought on behalf of historically marginalized groups, but that may be changing. Recently, there has been an increase in less traditional causes of action in class action litigation, with many of these cases having a human rights focus. This litigation will often seek damages under the Canadian Charter of Rights and Freedoms using the violation of a specific Charter right as the cause of action. A specific example of this litigation is in the context of administrative segregation, or what is more commonly known as solitary confinement.

The Canadian Federal Government stipulates that administrative segregation is to be used only for the shortest period of time necessary when there are no other reasonable and safe alternatives. However, since the purpose of administrative segregation is to provide security to inmates, the length of this type of segregation can be indefinite. Disciplinary segregation, on the other hand, is a form of punishment for offences committed at a penitentiary which is time-limited – the segregation may not last more than 30 days for a single offence or more than 45 days for multiple offences. 

The Federal Government has faced repeated criticism and lawsuits over the practice of administrative segregation claiming that the practice is akin to torture. The Supreme Court of Canada recently granted the Federal Government’s request to allow their current administrative segregation policy to remain in place for now, giving the Government more time to enact new legislation. The request came in response to a December 2017 decision from the Ontario Superior Court which declared parts of the legislation governing administrative segregation unconstitutional and gave the Federal Government a year to correct the legislation. The government successfully persuaded the Ontario Court of Appeal on two occasions to grant them an extension.

Administrative segregation class proceedings allege that the government is violating inmates’ section 7, 9, 11, and 12 rights under the Charter when inmates are placed in solitary confinement for prolonged periods of time. A recent example is Reddock v Canada (AG) where the representative plaintiff claimed the Federal Government breached the inmates’ Charter rights in addition to committing systemic negligence when placing inmates in administrative segregation. The representative plaintiff argued that the practice of administrative segregation is physically and psychologically harmful, and because of this placing inmates in administrative segregation for a prolonged period of time is in contravention of the Charter. Ontario Superior Court Justice Paul Perell agreed and granted the plaintiff’s motion for summary judgment on the illegality of administrative segregation practice, finding that “placement in administrative segregation for more than fifteen days causes serious physical and mental harm.” He awarded the class $20 million in damages to be paid directly to class members.

In November, the Ontario Court of Appeal will hear an appeal of Brazeau v Canada (AG) which was also decided by Justice Perell. Similar to Reddock, the representative plaintiffs in Brazeau alleged that by placing mentally ill inmates in administrative segregation, the Federal Government breached class members’ section 7, 9, and 12 rights under the Charter. In response to a summary judgment motion brought by the plaintiff, Justice Perell found that two groups of inmates’ section 7 rights were violated by the Federal Government: first, inmates who were voluntarily placed in administrative segregation for more than 60 days, and; second, inmates who were involuntarily placed in administrative segregation for more than 30 days. Justice Perell also found that the section 12 rights of the above-mentioned sub-classes were also violated.

Justice Perell awarded the class $20 million in damages but instead of directing the compensation to individual class members, he earmarked the money to help boost mental health supports for inmates and correctional facilities. The Federal Government is appealing his decision in part on the basis that he lacks the jurisdiction to order such a remedy.

In addition to Reddock and Brazeau, there are currently two other administrative segregation class actions that are winding their way through the courts – one from British Columbia, one from Quebec. Both Reddock and Brazeau, in addition to these other actions, have held that the enabling legislation of the Corrections and Conditional Release Act and the manner of its operation are contrary to the Charter.

When an individual’s Charter rights are violated, they may be entitled to a damage award under section 24. A class proceeding represents the interests of all members of the class. If the Charter rights of a large group of people have been breached by a defendant’s common practice, it may be possible to obtain a large aggregate damages award for class members. Such damages can be assessed on a class wide basis because it is not always necessary to assess each class member’s circumstances. Rather, a court can award general damages in order to serve a deterrence or vindication function, if not a compensatory one. In Reddock, Justice Perell held that “there is a base level of compensatory harm for the contraventions of the Charter or for systemic negligence,” and accordingly awarded the class compensatory damages. The availability of class-wide damages in these cases makes Charter class actions more attractive to lawyers who must fund the litigation out of their own pockets and are only paid for their work if the case results in a large monetary payment by the defendant.

Administrative segregation is just one of the many human rights and/or Charter oriented class proceedings being brought in courts across Canada. Other examples of these actions include those brought by residential school survivors, such as McLean v Canada, actions against the Federal Government for failing to address climate change, and systemic sexual abuse actions.

Charter-based class actions have been litigated in the past. However, the Charter is being argued in greater numbers in class proceedings and is stretching the traditional categories of litigation as outlined above. Of interest will be the outcome of the Brazeau appeal and if the Ontario Court of Appeal comments on the jurisdiction of judges to dispense aggregate Charter damage awards in ways other than directly to individual class members. As non-traditional categories of Charter class actions arise, courts may in turn begin to develop creative uses of damage awards as a means of using section 24 of the Charter to address systemic issues. Regardless, the Brazeau appeal should prove a significant decision for the future of Charter litigation and other human rights class actions.

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