Accurately Recording Statements Of The Court: A Cautionary Tale

Justice Perell of the Ontario Superior Court was recently given pause in the midst of a certification motion in Davidson v Canada (Attorney General) when he expressed concern that a written submission made by counsel could have led an objective observer to reasonably apprehend that he had pre-judged the motion before it had been completed. While the motion has now moved forward, with Justice Perell continuing to preside, Justice Perell's brief endorsement provides a cautionary tale for counsel with respect to making submissions in ongoing class proceedings.

In this case, an initial hearing was held to determine whether the proposed class action met the requirements of the first of five certification criteria set out in section 5(1) of the Class Proceedings Act. Justice Perell held that the first criterion was satisfied, and the parties were then invited to make written submissions in advance of further hearings with respect to the remaining four certification criteria.