 |
| Lorne Sossin |
For me, the karma could not have been better. Justice Belobaba had been a role model and mentor from the first days of my appointment to the court. A gold medallist when he graduated from Osgoode Hall Law School in 1973, former law clerk to Chief Justice Bora Laskin, Oxford bachelor of civil law (BCL) graduate, member of Osgoode’s faculty and associate dean, founding editor of the Supreme Court Law Review, a partner at Gowlings and later his own firm, and since 2005, a justice of the Superior Court. In short, a legal rock star!
On May 4, 2023, Justice Edward Belobaba passed away in his 75th year, after an incomparable 50-year career as professor, lawyer and judge. Ed had a reputation for exploring new frontiers. In practice, he stewarded some of the first foreign investment forays into the former Soviet Union in the heady Glasnost era of the 1980s. This represented, in some ways, coming full circle. Ed’s family background was Ukrainian, and the Nazis had taken his parents from Ukraine to Germany as “Eastern Workers” in 1941. Ed was born in West Germany in 1948 and his family immigrated to Canada a year later. He spoke Ukrainian and learned Russian at university. In 1992, Ed helped open the first fully staffed Canadian law office in Moscow for Gowlings.
As a jurist, Justice Belobaba is most strongly associated with his many significant class action decisions, charting a different kind of new terrain. In a 2015 profile, he was called “The Billion Dollar Judge” because of his adjudication of so many consequential class actions — or as he put it, because many of the cases he adjudicated have “more zeros” than ordinary civil disputes. One of the most notable class actions Justice Belobaba presided over was the “Sixties Scoop” litigation. The lawsuit launched in 2009 sought $1.3 billion on behalf of about 16,000 Indigenous children in Ontario who claimed they were harmed by being placed in non-Aboriginal homes from 1965 to 1984 under terms of a federal-provincial agreement.
In Brown v. Canada (Attorney General), 2017 ONSC 251, Justice Belobaba sided with the plaintiffs on liability, after which the class action settled. Justice Belobaba never minced words in his reasons. In response to the government’s argument that “things were different back then,” he wrote, “Canada’s submission misses the point. The issue is not what was known in the 1960s about the harm of trans-racial adoption or the risk of abuse in the foster home. The issue is what was known in the 1960s about the existential importance to the First Nations peoples of protecting and preserving their distinctive cultures and traditions, including their concept of the extended family. There can be no doubt that this was well understood by Canada at the time.”
Justice Belobaba was involved at the outset of class actions in Canada, serving on the advisory committee recommending the scheme that would become Ontario’s Class Proceedings Act in 1992. While perhaps best known for his high-profile class action decisions, he also authored many notable civil and public law judgments, whose influence will continue to be felt. Indeed, on the day he died, the Court of Appeal released a decision restoring a judgment from Belobaba J., which the Divisional Court had reversed, in Leroux v. Ontario, 2023 ONCA 314. Justice Belobaba’s judgment certified a class action by people living with developmental disabilities and their families who alleged the government of Ontario’s unreasonably long wait lists for services breached their constitutional rights.
The moving outpouring of affection for Justice Belobaba following news of his death reflects the breadth of his impact — from the fond memories of former students and classmates, to the esteem of former colleagues and clients, to the well-earned respect of litigants, to the heartfelt affection of fellow judges, friends and acquaintances. These tributes feature oft-repeated descriptors: “approachable” “generous” “kind” “insightful” “fair-minded” “sensitive.” As one lawyer who appeared before him put it: “Would that all judges take a page from his book.”
In one interview, Justice Belobaba shared that his favourite book was Zen and the Art of Motorcycle Maintenance: An Inquiry into Values, by Robert M. Pirsig. This did not surprise me. There is a well-known passage from this book which reads: “The place to improve the world is first in one’s own heart and head and hands, and then work outward from there.” Justice Belobaba lived up to this advice, and his “work” has in so many ways improved our world.
After my move into Ed’s office in March 2020, we dealt with some of the logistics involved. I happily inherited his full collection of 40 years worth of the Supreme Court Law Review, and ended up with his rug and a lovely painting. We made plans to toast our transitions over lunch at the Law Society restaurant March 23, 2020. I also thought this would be the ideal opportunity to thank Ed for all of the ways in which he had inspired me over the years. Turns out we were a week too late — by our lunch date, the restaurant was closed (for good, perhaps), the courthouse had closed down, and the COVID-19 pandemic was upon us. Justice Belobaba and I stayed in touch, but I never had the chance to raise a glass with (and to) him as I had planned. Instead, I will now look for ways to honour his legacy in the work I do and in how I do it.
Justice Lorne Sossin was appointed to the Court of Appeal for Ontario in November 2020. Prior to this appointment, he served as a judge of the Superior Court of Justice. Before this initial appointment, Justice Sossin served as professor and dean of Osgoode Hall Law School, at York University, and was a professor with the Faculty of Law at the University of Toronto and a former associate dean.