The Report of the Attorney General’s Advisory Committee on Class Action Reform (1985-1993)
| Author | Suzanne Chiodo |
| Pages | 89-170 |
Chapter 4
THE REPORT OF THE
ATTORNEY GENERAL’S
ADVISORY COMMITTEE ON
CLASS ACTION REFORM
(1985–1993)
A. IAN SCOTT’S EARLY YEARS AS ATTORNEY
GENERAL 19851988
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, 2001) 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].
The Cana dian Class Action R eview | Volume 14 • No 1
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.13 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 1 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 At torney General’s Adviso ry Committee on Class Actio n Reform (1985–1993)
At his right hand16 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 oce, the Liberals were also busy
bringing in full funding for Catholic schools; banning extra billing by
Ontario’s doctors; approving the Darlington nuclear power plant; intro-
ducing pay equity; addressing the rights of Indigenous peoples; dealing
with the issues of abortion and abortion clinics; and participating in
the Meech Lake Accord,21 among numerous other changes. Class action
reform had been effectively in limbo since the Supreme Court’s decision
in Naken, and continued to be so for a few years after the change of gov-
ernment. In fact, the MAG did not take any public action on the issue
until the middle of 1988.
Nevertheless, Cochrane began working in the background as soon as
Scott was appointed. On that same day in June 1985, Cochrane received
16 AC member interview, above note 8.
17 Scott, above note 1 at 130.
18 Ibid at 128–29 and 134; Cochrane interview 1, above note 9; interview of Michael
Cochrane (28 June 2016) [Cochrane interview 2].
19 Letter from Cochrane to Julian Polika, director, Crown Law Oce — Civil (8 August
1985) stating that a class action bill is one of Ian Scott’s priorities for the upcoming
session of the legislature, in Policy Development Division Counsel correspondence
files, Class Actions — General — File #1, 1985–1987, RG 4-40, in Box No B248633,
North York, Archives of Ontario [Box No B248633 — General File #1].
20 Ewart interview, above note 10; Peterson interview, above note 4.
21 Scott, above note 1 at 145.
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