The Report of the Attorney General's Advisory Committee on Class Action Reform (1985-1993)

AuthorSuzanne Chiodo
Pages89-170
Chapter
4
THE
REPORT
OF
THE
ATTORNEY
GENERAL
S
ADVISORY
COMMITTEE
ON
CLASS
ACTION
REFORM
(1985-1993)
A.
LAN
SCOTT
S
EARLY
YEARS
AS
ATTORNEY
GENERAL
(1985-1988)
On
18
June
1985,
after
more
than
four
decades
in
power,
the
provincial
Progressive
Conservative
government
was
defeated
in
a
vote
of
no
confi
dence.
In
its
place
and
with
the
support
of
the
NDP,
David
Peterson
s
Lib
erals
formed
a
minority
government.
1
When
the
government
was
sworn
in
on
26
June,
Ian
Scott
was
appointed
attorney
general.
Scott
had
helped
to
negotiate
the
accord
with
the
NDP
that
made
the
Liberal
victory
pos
sible
and
was
one
of
Peterson
s
right-hand
ministers,
part
of
an
inner
cir
cle
that
had
an
important
influence
on
the
premier.
2
Peterson
ran
his
Cabinet
informally,
often
bypassing
formal
chan
nels
of
communication
and
allowing
his
ministers
to
make
submissions
to
Cabinet
without
prior
approval.
3
He
respected
Scott
and
trusted
him
implicitly,
describing
him
to
this
day
as
arguably
the
finest
Attorney
General
this
country
has
ever
produced.
4
He
gave
Scott
a
free
hand
in
1
The
Liberals
and
the
NDP
agreed
to
co-operate
for
a
two-year
period,
during
which
the
Liberals
promised
not
to
call
an
election,
and
the
NDP
promised
not
to
treat
a
defeat
in
the
House
as
a
confidence
measure.
The
two
parties
also
agreed
on
a
list
of
policies
that
had
been
in
both
their
manifestos:
Ian
Scott
with
Neil
McCormick,
To
Make
a
Difference:
A
Memoir
(Toronto:
Stoddart,
zooi)
at
121
[Scott],
2
Ibid
at
120
and
143-44.
3
Ibid
at
129
and
143.
4
Interview
of
David
Peterson
(24
July
2017)
[Peterson
interview]
.
89
90
THE
CLASS
ACTIONS
CONTROVERSY
running
the
Ministry
of
the
Attorney
General
(MAG)
5
and
supported
all
of
his
major
decisions.
6
Peterson
was
a
delegator
and
gave
his
ministers
as
much
line
as
they
could
take
...
the
strong
[ministers]
could
always
get
themselves
out
of
trouble.
Ian
was
a
strong
one.
7
Scott
had
been
a
prac
tising
litigator
and
Peterson
therefore
deferred
to
his
knowledge
on
civil
justice
reform
issues
such
as
class
actions.
Driven,
ambitious,
and
a
master
tactician,
8
Scott
would
be
instru
mental
in
implementing
the
government
s
reform
agenda.
He
had
a
dis
proportionate
influence
on
the
government
s
work,
9
regularly
reviewing
the
Cabinet
submissions
of
other
ministries
and
putting
forward
his
views
on
them,
or
requiring
Cabinet
colleagues
to
consult
with
him
before
publicly
opining
on
certain
subjects.
10
He
believed
that
an
independent
attorney
general
should
have
...
a
very
special
role
to
play
(apart
from
his
litigation
role)
in
the
policy-making
process
of
government.
11
As
Peterson
states,
there
was
no
issue
that
came
before
Cabinet
that
[Scott]
wasn
t
prepared
for
or
had
an
opinion
on.
He
was
a
very
forceful
and
aggressive
guy
and
would
use
any
trick
to
win
an
argument.
12
Scott
was
a
fearsome
debater
who
never
lost
the
cross-examination
style
he
had
developed
as
counsel.
1
He
was
good
at
getting
his
own
way,
which,
despite
the
premier
s
trust
in
him,
led
to
some
very
serious
confronta
tions
between
the
two
on
certain
issues.
14
Disagreeing
with
him
was
not
a
pleasant
experience,
and
he
used
this
power
of
persuasion
to
get
his
policies
through
Cabinet.
15
5
Scott,
above
note
I
at
140
and
203;
Peterson
interview,
ibid.
6
Scott,
above
note
1
at
126
and
203.
7
Peterson
interview,
above
note
4.
8
Interview
of
Advisory
Committee
member
(13
April
2016)
[AC
member
interview]
9
Interview
of
Michael
Cochrane
(21
April
2016)
[Cochrane
interview
1].
10
Ibid;
Scott,
above
note
1
at
144
and
156;
interview
of
Douglas
Ewart,
then
director
of
the
Policy
Development
Division
(and
Michael
Cochrane
s
direct
superior)
at
the
Ministry
of
the
Attorney
General
(26
April
2016)
[Ewart
interview].
11
Ian
Scott,
Law,
Policy,
and
the
Role
of
the
Attorney-General:
Constancy
and
Change
in
the
1980s
(1989)
39
University
of
Toronto
Law
Journal
109
at
109.
12
Peterson
interview,
above
note
4.
13
Ewart
interview,
above
note
10;
interview
of
Peter
Woolford,
representative
of
the
Retail
Council
of
Canada
on
the
Attorney
General
s
Advisory
Committee
(29
April
2016)
[Woolford
interview
1];
Scott,
above
note
1
at
79.
14
Peterson
interview,
above
note
4.
15
Ewart
interview,
above
note
10;
Woolford
interview
1,
above
note
13.
The
Report
of
the
Attorney
General's
Advisory
Committee
on
Class
Action
Reform
(1985-1993)
91
At
his
right
hand
16
stood
Michael
Cochrane,
a
young
lawyer
in
the
Policy
Development
Division
(PDD),
one
of
the
chief
sections
of
the
MAG.
17
Called
to
the
bar
just
five
years
previously,
Cochrane
had
arrived
at
the
ministry
a
couple
of
weeks
before
Scott.
The
two
men
equalled
each
other
in
energy,
ambition,
and
a
desire
to
bring
about
law
reform
in
numerous
areas.
Both
possessed
the
key
to
any
successful
career
in
law:
a
seemingly
endless
capacity
for
work.
Scott
and
Cochrane
demonstrated
an
uncanny
ability
to
persuade
and,
where
persuasion
failed,
to
get
people
where
they
wanted
them
through
swift
manoeuvring,
political
savoir
faire,
and
sleights
of
hand
at
the
negotiating
table.
Cochrane
made
full
use
of
Scott
s
open
ness
to
policy
ideas
and
his
desire
to
rapidly
advance
the
government
s
pro
gressive
agenda,
often
drafting
statutes
over
the
course
of
a
weekend
so
they
could
be
introduced
as
soon
as
possible.
18
Cochrane
facilitated
Scott
s
reform
agenda
in
areas
such
as
consumer
rights
and
environmental
protec
tion,
but
one
of
his
greatest
achievements
was
class
action
reform.
Despite
Cochrane
s
statements
to
the
contrary,
19
class
actions
do
not
seem
to
have
been
high
on
the
agenda
of
the
new
attorney
general.
20
This
is
not
surprising:
in
their
first
term
of
office,
the
Liberals
were
also
busy
bringing