New Brunswick

WorksafeNB says 'out of bubble' lawyers must self-isolate for 14 days

WorksafeNB has made clear that lawyers from outside the Atlantic bubble cannot enter courthouses in New Brunswick without first self-isolating for 14 days.

Case has impact on west side water class-action lawsuit

Toronto lawyers representing the City of Saint John in a class-action lawsuit will not be able to attend the trial or pre-trial hearings in person unless they self-isolate for 14 days beforehand. (CBC)

WorksafeNB has made clear that lawyers from outside the Atlantic bubble cannot enter courthouses in New Brunswick without first self-isolating for 14 days.

The decision could have an impact on how a class-action lawsuit filed by west Saint John residents is conducted.

The defendant in the case, the City of Saint John, has enlisted Toronto lawyers Glenn Zakaib and David Elman as counsel.

The case involves west side residents affected by pipe failures and water quality issues allegedly caused by a new municipal water supply.

Zakaib and Elman had hoped to attend an important three-day court hearing last week in person. 

The two sides have filed competing motions for summary judgment that could lead to a decision the case will not be allowed to proceed.

But Justice Thomas Christie adjourned the hearing after concerns about attendance were raised by both sides.

Rod Gillis, who represents west side residents, told Christie he is not comfortable being in the same courtroom with lawyers from Toronto where a large number of COVID 19 cases are still active there. 

WorksafeNB has determined outside-Atlantic-bubble lawyers cannot enter New Brunswick courthouses without self isolating for 14 days in advance. (Matthew Bingley, CBC)

The city's lawyers felt they would be at a disadvantage presenting from Ontario by video on such an important matter, while the other side's lawyers were in the room with the judge.

"Both positions are, under the circumstances, reasonable," wrote Christie in adjourning the matter.

But in a position outlined in a statement to CBC, WorksafeNB makes clear the two men will have to arrive in the province  two weeks prior and self–isolate if they wish to attend a hearing, or trial, in person.

While people in some jobs are allowed to come to New Brunswick to work under specific conditions that permit isolation, lawyers, "given the nature of their work and interaction with others" do not fit into that category.

"In these instances, it is critical for out of bubble lawyers to self-isolate for 14 days before physically appearing in a New Brunswick justice facility," said the statement.

"It's the right decision," said Gillis. "If they had done that in the first place we would have done our argument last week."  

Gillis said he is now seeking new dates for the summary judgment motions.

He said he is prepared to make his arguments by video if the decision is made that both sides must do so.

'The right decision:' Rod Gillis represents west Saint John residents in a class action suit against the City of Saint John. Gillis does not want to be in the same courtroom with lawyers from Toronto who have not spent two weeks in self-isolation. (CBC)

Reached by CBC Tuesday, Zakaib said he did not want to comment.

But Toronto-based employment lawyer and commentator Howard Leavitt said it puts a lawyer at a substantial handicap not to be in person, particularly in cases requiring the examination of witnesses.

"There's a real disadvantage, and it's bad enough if both sides are in that predicament, but if one side is and the other side isn't, it's simply unfair."

Moncton employment lawyer Robert Basque agrees, saying it might even be grounds for appeal if one side is placed at a disadvantage by not being in the courtroom, while the other side is present.

On the other hand, said Basque, lawyers roam around a courtroom, handle exhibits and documents and interact extensively with others. 

"What they are trying to do right now is balance health and justice," said Basque. "And so far health is winning."

The class action lawsuit was launched in September 2018. It followed a move by the city to switch the west Saint John drinking water source from the Spruce Lake Reservoir to a collection of drilled wells in the South Bay area.

Shortly after the new water source came online, many residents began to complain of leaking copper pipes and costly water damage. 

There were also complaints of failed appliances and skin irritation.

About the Author

Connell Smith is a reporter with CBC in Saint John. He can be reached at 632-7726