Court said remote northern residences was one reason for the unique arrangement
In a case pending before the Nunavut Court of Appeal, the remote northern residences of many of the plaintiffs had the court allow the posting of voluminous case materials via Facebook, instead of the individual postal service.
The case stemmed from five civil actions filed in the Nunavut Court of Justice by 139 plaintiffs, against the governments of the Northwest Territories and Nunavut. The plaintiffs allege sexual abuse by teacher Ed Horne and social worker Kevin Amyot, both of whom were working for the government at that time.
The governments ultimately paid “millions of dollars in settlement,” to the plaintiffs’ then law firm Budden Morris Law Offices, for distribution to the plaintiffs. Later, the plaintiffs retained another law firm, Ahlstrom Wright Oliver & Cooper LLP, to sue Budden Morris, alleging negligence in the handling of the original claims.
When the case reached the appeals court, Ahlstrom Wright argued that, on account of the voluminous materials and the potentially excessive postage costs, and given that many of the plaintiffs are from remote communities, are illiterate and have limited internet access, it should be given some leeway as to the service of the appeal materials. Budden Morris argued that every plaintiff should be served with some notice of the appeal materials.
Because service of individual paper copies on all the plaintiffs would be “impractical and disproportionate to the benefits,” Justice Slatter allowed Ahlstrom Wright to send, at a minimum, concise letters notifying as many plaintiffs as possible of the appeal, either via ordinary mail or via email. The full appeal materials could then be posted on a “suitable private electronic platform” such as Facebook.
“I am not concerned that posting material on Facebook will pose an unreasonable risk of identifying the plaintiffs, as the materials to date only use pseudonyms,” wrote Slatter.
As for the negligence allegations, Ahlstrom Wright’s argues Budden Morris deducted harmonized sales tax from the settlement proceeds, even though Nunavut didn’t adhere to an HST program.
Budden Morris filed a third-party notice, alleging that Ahlstrom Wright was negligent for failing to apply to Canada Revenue Agency to get back the HST, and should therefore be added as a party to the case, in accordance with s. 7 of the Contributory Negligence Act.
In response, Ahlstrom Wright filed the present application to strike the third-party notice, alleging that the third-party notice lacked a cause of action. Justice Bychok disagreed with Ahlstrom Wright, stating that there was a cause of action under the Contributory Negligence Act, which provides for the issuance of a third-party notice if someone who is not originally a party appears to be “wholly or partly responsible for the damages claimed.”
Bychok also held that Ahlstrom Wright could no longer act as counsel for the plaintiffs, due to the conflict of interest. As Bychok wrote, “a party to an action cannot also represent another party on the same action.”
