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SCC File No. 36456
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO)
BETWEEN:
DIANNA LOUISE PARSONS, MICHAEL HERBERT CRUICKSHANKS, DAVID TULL, MARTIN HENRY GRIFFEN, ANNA KARDISH, ELSIE KOTYK, Executrix of the Estate of Harry Kotyk, deceased
and ELSIE KOTYK, personally
- and-
FUND COUNSEL FOR ONTARIO
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
- and-
THE CANDIAN RED CROSS SOCIETY, and THE ATTORNEY GENERAL OF CANADA
-and-
Appellants
Appellant
Respondent
Respondents
HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA, HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN, HER MAJESTY THE QUEEN IN RIGHT OF
MANITOBA, HER MAJESTY THE QUEEN IN RIGHT OF NEW BRUNSWICK, HER MAJESTY THE QUEEN IN RIGHT OF PRINCE EDWARD ISLAND, HER MAJESTY THE QUEEN IN RIGHT OF NOVA SCOTIA, HER MAJESTY THE QUEEN IN RIGHT
OF NEWFOUNDLAND AND LABRADOR, THE GOVERNMENT OF THE NORTHWEST TERRITORIES, THE GOVERNMENT OF NUNA VUT, and THE
GOVERNMENT OF THE YUKON TERRITORY
Interveners
Proceeding under the Class Proceedings Act, 1992
AND BETWEEN:
JAM:ES KREPPNER, BARRY ISAAC, NORMAN LANDRY as Executor of the Estate of the late SERGE LANDRY, PETER FELSING, DONALD MILLIGAN, ALLAN
GRUHLKE, JIM LOVE, and PAULINE FOURNIER as Executrix of the Estate of the late PIERRE FOURNIER
Appellants - and-
FUND COUNSEL FOR ONTARIO Appellant
- and-
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Respondent
-and-
THE CANADIAN RED CROSS SOCIETY and the ATTORNEY GENERAL OF CANADA
Respondents
-and-
HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA, HER MAJESTY THE QUEEN IN RIGHT OF SASKATCHEWAN, HER MAJESTY THE QUEEN IN RIGHT OF
MANITOBA, HER MAJESTY THE QUEEN IN RIGHT OF NEW BRUNSWICK, HER MAJESTY THE QUEEN IN RIGHT OF PRINCE EDWARD ISLAND, HER MAJESTY THE QUEEN IN RIGHT OF NOV A SCOTIA, HER MAJESTY THE QUEEN IN RIGHT
OF NEWFOUNDLAND AND LABRADOR, THE GOVERNMENT OF THE NORTHWEST TERRITORIES, THE GOVERNMENT OF NUNAVUT and THE
GOVERNMENTOFTHEYUKONTEIDUTORY
Interveners
Proceeding under the Class Proceedings Act, 1992
FACTUM OF THE APPELLANT, FUND COUNSEL FOR ONTARIO (Pursuant to Rules 35 and 42 of the Rules of the Supreme Court of Canada,
SORl2002-156)
GOWLING LAFLEUR HENDERSON LLP
1 First Canadian Place 100 King Street West, Suite 1600 Toronto, ON M5X 1 G5
John E. Callaghan/Alex Zavaglia Tel.: (416) 369-6693 Fax: (416) 862-7661 Email: [email protected] [email protected] Counsel for the Appellant, Fund Counsel for Ontario
TO:
SUTTS, STROSBERG LLP 600 Westcourt Place 251 Goyeau Street Windsor, ON N9A 6V4
Harvey T. Strosberg, Q.C. Tel.: (519) 561-6216 Fax: (519) 561-6203 Email: [email protected]
PAPE BARRISTERS Professional Corporation One Queen Street East Suite 1910, P.O. Box 69 Toronto, ON M5C 2W5
Paul 1. Pape/Shantona Chaudhury Tel.: (416) 364-8755 Fax: (416) 364-8855 Email: [email protected] [email protected]
Counsel for the Appellants, (Other than Fund Counsel of Ontario)
GOWLING LAFLEUR HENDERSON LLP
2600-160 Elgin Street Ottawa, ON KIP lC3
D. Lynne Watt Tel.: (613) 786-8695 Fax: (613) 563-9869 Email: [email protected]
Agent for Counsel for the Appellant, Fund Counsel for Ontario
SUPREME ADVOCACY LLP 340 Gilmour Street Suite 100 Ottawa, ON K2P OR3
Marie-France Major Tel: (613) 695-8855 Fax: (613) 695-8580 Email: [email protected]
Agents for Counsel for the Appellants (Other than Fund Counsel of Ontario)
AND TO:
ATTORNEY GENERAL OF ONTARIO Crown Law Office - Civil 720 Bay Street, 8th Floor Toronto, ON M7A 2S9
Malliha Wilson Tel.: (416) 326-4953 Fax: (416) 326-6996 Email: [email protected]
Lynne McArdle TeL: (416) 314-2287 Fax: (416) 326-4181 Email: [email protected]
Constitutional Law Branch 720 Bay Street, 4th Floor Toronto, ON M7 A 2S9
Josh Hunter Tel.: (416) 326-3840 Fax: (416) 326-4015 Email: [email protected]
Counsel for the Respondent, Her Maj esty the Queen in Right of Ontario
AND TO:
DEPARTMENT OF JUSTICE CANADA Civil Litigation Branch, East Memorial Bldg. 284 Wellington Street Ottawa, ON KIA OR8
Paul B. Vickery Matthew Sullivan Tel.: (613) 948-1483 Fax: (613) 941-5879 Email: [email protected]
Counsel for the Respondent, the Attorney General of Canada
BURKE-ROBERTSON Barristers & Solicitors 200-441 MacLaren Street Ottawa, ON K2P 2R3
Robert E. Houston, Q.c. Tel.: (613) 566-2058 Fax: (613) 235-4430 Email: [email protected]
Agent for Counsel for the Respondent, Her Majesty the Queen in Right of Ontario
DEPARTMENT OF JUSTICE CANADA 50 O'Connor Street Suite 500, Room 556 Ottawa, ON KIA OR8
Christopher Rupar TeL: (613) 941-2351 Fax: (613) 954-1920 Email: [email protected]
Agent for Counsel for the Respondent, the Attorney General of Canada
AND TO:
McCARTHY TETRAULT Suite 5300, TD Bank Tower Box 48, 66 Wellington Street West Toronto, ON M5K lE6
Caroline ZayidJ H. Michael Rosenberg Tel.: (416) 362~1812 Fax: (416) 868-0673 Email: [email protected] [email protected] Counsel for the Interveners,
Her Majesty the Queen in Right of Alberta, Her Majesty the Queen in Right of Saskatchewan, Her Majesty the Queen in Right of Manitoba,
CONWAY BAXTER WILSON LLP 401 - 1111 Prince of Wales Drive Ottawa, ON K2C 3 T2
Co lin Baxter Tel: (613)780~2012 Fax: (613)688~0271 Email: [email protected]
Ottawa Agent for Counsel for the Interveners
Her Majesty the Queen in Right of New Brunswick, Her Majesty the Queen in Right of Prince Edward Island, Her Majesty the Queen in Right of Nova Scotia, Her Majesty the Queen in Right of Newfoundland and Labrador, the Government of the Northwest Territories, the Government ofNunavut, and the Government of the Yukon Territory
TABLE OF CONTENTS
FACTUM OF THE APPELLANT, FUND COUNSEL FOR ONTARIO
SECTION PAGES
Part I - Overview and Facts ................................................................................ , ................... 1
A. Overview ..................................................................................................................... 1
B. Facts ............................................................................................................................. 3
i. The Tainted Blood Supply ........................................................................................ 3
ii. The Aftennath .......................................................................................................... 4
iii. The Compensation Scheme ..................................................................................... 6
iv. Fund Counsel and References ................................................................................ 10
v. Procedural History ................................................................................................... 12
Part II - Statement of Issues ..................................................................................................... 18
Part III - Argument .................................................................................................................. 19
A. Ontario Superior Court Judges Not Prohibited From Sitting Outside Ontario ........................................................................................................... 19
i. No Constitutional or Common Law Impediment to Sitting Outside' Home Province ........................................................................................... 19
ii. No Statutory Prohibition Against Ontario Superior Court Judges Sitting Outside Ontario ........................................................................................... 22
iii. Inherent Jurisdiction of the Court to Sit Outside Home Province ........................... 26
B. If Court Has Discretion to Exercise Inherent Jurisdiction To Sit Outside Home Province, Did Motion Judge Exercise that Discretion Reasonably .................................................................................................................... 3 3
i. Standard of Review .................................................................................................... 33
ii Exercise of Discretion ................................................................................................ 34
111. Real Lives, Real Consequences ....................................................................... 39
Part IV - Submissions on Costs ............................................................................................... 40
Part V - Order Sought. ..................................................... , ....................................................... 40
Part VI - Table of Authorities .................................................................................................. 41
Part VII - Statutes and Regulations .......................................................................................... 45
1.
A.
(a)
PART I - OVERVIEW AND FACTS
OVERVIEW
The central issues raised by this appeal are as follows:
Are there any constitutional, statutory or common law prohibitions or limitations
on an Ontario superior court justice sitting outside Ontario to hear a motion
relating to the administration of the settlement of a national class action where
class members reside throughout the country?
(b) With respect to statutory limitations, does s.135 of the Courts of Justice Act or
rule 1.08 of the Rules C?f Civil Procedure provide a statutory basis for or
restriction on a superior court judge's inherent jurisdiction to sit outside Ontario?
(c) Can an Ontario superior court justice rely on the inherent jurisdiction of a s.96
court to sit outside Ontario to hear such a motion? If so, is that jurisdiction limited
to only those circumstances where there is a video link to an Ontario courtroom?
(d) If the court has the discretion to exercise its inherent jurisdiction to sit outside
Ontario, was that discretion exercised reasonably by the motion judge in this
case?
2. This appeal arises out of a national tragedy involving individuals who were
infected with Hepatitis C by the Canadian blood supply in the late 1980s. The tragedy resulted in
a host of legal challenges including a public inquiry, CCAA proceedings, criminal trials and
numerous civil actions. This appeal addresses yet another challenge as it relates to the
management of class proceedings.
3. The settlement agreement that resolved, on a national basis, the various class
action claims on a national basis against the Canadian Red Cross Society ("Red Cross") and the
other defendants provided for a $1.18 billion fund to compensate victims across Canada through
a claims process (the "Agreement"). This pan-Canadian settlement was one of the earliest
challenges for Canada's then fledgling class action regime. Ontario (which had a national class),
2
Quebec and British Columbia were the jurisdictions implementing the settlement of the class
proceedings. Superior court justices from each of the respective provinces supervise the
Agreement, which includes a provision that requires the consensus of all three supervisory
Judges before any single order can become effective.
4. This appeal emerges from a motion seeking approval of a protocol to extend
certain claims deadlines. It was proposed by class counsel that the judges hear the matter in a
common location. The hearing was set for Alberta where each of the supervisory Judges was
attending the Canadian Judicial Council. The Attorney General for Ontario ("AGO") objected to
the Ontario judge sitting in Alberta. The three supervisory Judges determined it was appropriate
to sit in Alberta. In essence, the supervisory Judges recognized that the principles of "access to
justice," "judicial economy" and fairness, all warranted ajoint hearing.
5. To date, nine judges have considered this case and whether a s.96 judge may sit in
a different province in a joint hearing with judges from other provinces. All nine judges have
concluded that a joint hearing can take place. However, there is disagreement about the legal
basis for such a hearing:
6.
(a) Four of the judges have said that the court can exercise its inherent jurisdiction to
sit outside their home provinces.
(b) F our of the judges have said the court does not have the jurisdiction to sit outside
their respective home provinces. However, if a video-link to a courtroom in the
home province exists, that joint hearing will be deemed to take place in the home
provmce.
(c) And finally, one judge split the difference between the two camps, holding the
court can rely on its inherent jurisdiction to sit outside their home province, but
they must maintain a video link to satisfy the open court principle.
It falls on this Court to determine if such a hearing is appropriate and, if so, the
legal basis for such a hearing.
3
7. This appellant submits that the Ontario supervisory Judge had the inherent
jurisdiction to sit together with his fellow supervisory Judges in Alberta, and properly exercised
his discretion to both approve the proposed joint sitting and detennine that a video link back to
Ontario was not necessary.
B. FACTS
8. This appeal arises from a motion for directions brought in the context of class
action proceedings commenced in Ontario, Quebec and British Columbia on behalf of persons
infected with Hepatitis C by the Canadian blood supply between January 1, 1986 and July 1,
1990 (the "Class Period,,).1
(i) The Tainted Blood Scandal
9. The tainted blood scandal of the 1970s and 1980s was described by The
Honourable Mr. Justice Horace Krever as "a public health disaster that was unprecedented in
Canada.,,2
10. This "nationwide public health calamity,,3 was caused by infectious viruses,
including Hepatitis C and HIV, which contaminated the national blood supply. The Krever
Commission chronicled the failings of the Canadian blood system. His report released in 1997
revealed that unsuspecting Canadians were infected either after receiving transfusions of blood
components (red cells, platelets or plasma), or in the case of hemophiliacs, after using factor
concentrates which were made from using pooled plasma from a multitude of donors.4 In both
scenarios, the blood was contaminated with viruses, including Hepatitis C. What ought to have
been a life enhancing medical procedure became, in reality, a death sentence for many, while
others were forced to "live in the shadow of death."s The Krever Commission further found that
1 Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24, 2013, Part I, Tab 5 at para 5. 2 Horace Krever, Final Report: Commission of Inquiry on the Blood System in Canada, Volume I, "Forward," Ottawa, 1997 at xviii, Brief of Authorities of the Appellant, Fund Counsel for Ontario ("BOAAFCO"), Volume I, Tab 24. 3 Horace Krever, Final Report: Commission of Inquiry on the Blood System in Canada, Volume I, "Introduction," Ottawa, 1997 at 3, BOAAFCO, Volume I, Tab 24. 4 Horace Krever, Final Report: Commission of Inquiry on the Blood System in Canada, Volume I, "Introduction," Ottawa, 1997 at 3, BOAAFCO, Volume I, Tab 24. 5 Canadian Red Cross Society / Societe Canadienne de la Croix Rouge, Re, 2000 CanLII 22488 at para 4 (Ont Sup Ct J), BOAAFCO, Volume I, Tab 8.
4
there existed, by at least 1988, a test that could be employed to detect the presence of the
Hepatitis C virus (and earlier for HIV). However, it was not employed by the Red Cross until
1990.6
11. In his report, Justice Krever reviewed the tort system's response to the tragedy. In
doing so, he recognized its inadequacy in responding to this national tragedy. He recommended
that "without delay" the provinces and territories implement a "no-faulf' scheme for
compensating victims of the blood system.7 In doing so, he stated, "The compassion of a society
can be judged by the measures it takes to reduce the impact of tragedy on its members."g
12. The Krever Commission was established in October 1993, just 10 months after
the Ontario Class Proceedings Act, 1992 (the "CPA") was proclaimed into force. 9 The CPA was
then one of only two class proceedings regimes enacted in all of Canada, with legislation in
British Columbia following soon after. IO Responding to this national tragedy would not result in
a "no fault" scheme as envisioned by Justice Krever, but rather would test, and continue to test,
Canada's then fledgling, and now more established, class proceeding regimes.
(ii) The Aftermath
13. In the aftermath of the Krever report, the Red Cross, hospitals and health
practitioners were inundated with claims. By one account, there were over 230 actions and 10
class actions involving claimants suffering from Hepatitis C, HIV and Creutzfeldt-Jakob disease,
all alleging inadequate screening and testing of blood. 11 The Red Cross eventually went through
6 Horace Krever, Final Report: Commission o/Inquiry on the Blood System in Canada, Volume I, "Some Important Milestones: Hepatitis, 1965-95," Ottawa, 1997 at xxxi, BOAAFCO, Volume I, Tab 24. 7 Horace Krever, Final Report: Commission 0/ Inquiry on the Blood System in Canada, Volume III, "Towards a New Blood System," Ottawa, 1997 at 1045, BOAAFCO, Volume I, Tab 24. 8 Horace Krever, Final Report: Commission o/Inquiry on the Blood System in Canada, Volume III, "Towards a New Blood System," Ottawa, 1997 at 1029, BOAAFCO, Volume I, Tab 24. 9 Indeed, the fITst class proceeding regarding tainted blood (HIV) was dismissed in Sutherland v Canadian Red Cross Society (1994), 17 OR (3d) 645 (Oen Div), BOAAFCO, Volume II, Tab 42, a case which would likely be differently decided today. 10 The dates of original enactment in Quebec and British Columbia were 1978 and 1995, respectively: Code o/Civil Procedure, RSQ c C-25, Book IX, art 999; Class Proceedings Act, RSBC 1996, c 50. II Janis Sarra, Creditor Rights and the Public interest: Restructuring Insolvent Corporations (Toronto: University of Toronto Press, 2003) at 195, BOAAFCO, Volume II, Tab 31. .
5
CCAA proceedings, and the blood supply was subsequently put into the hands of Canadian
Blood Services. l2
14. Class proceedings were commenced by both persons infected with Hepatitis C
through transfusion (in Ontario, Parsons v. Canada, et al.) and persons suffering from
hemophilia (in Ontario, Krepner v. Canada, et al) that received blood infected with Hepatitis
C.l3 These class proceedings were commenced in Ontario, Quebec and British Columbia, which
were the only provinces at that time to enact detailed class action legislation. 14 On March 27,
1998, the Federal, Provincial and Territorial governments announced they would compensate for
Hepatitis C contracted from the blood supply in the Class Period. Negotiations then culminated
in the Agreement on June 15, 1999. Both Ontario class proceedings were eventually certified as
national class actions, and included all persons who received tainted blood in Canada during the
Class Period and became infected with Hepatitis C, excluding those persons who resided in
Quebec or British Columbia. I5 Class actions were also certified in British Columbia and Quebec
but included only those persons infected with the Hepatitis C virus in those provinces. 16
15. Later in 1999, the Agreement was approved by all three courts. The Agreement
established a fund from which eligible claimants could be compensated depending on the
severity of their illness (the "Fund"). Recovery was limited to those persons who contracted the
Hepatitis C virus between 1986 and 1990Y To provide for the settlement, the Federal and
Provincial governments agreed to pay $1,118,000,000 plus interestY The Federal government
advanced its portion at the time of settlement, whereas the provinces paid on an "as is required"
12 Janis Sarra, Creditor Rights and the Public Interest: Restructuring Insolvent Corporations (Toronto: University of Toronto Press, 2003) at 199, BOAAFCO, Volume II, Tab 31. 13 Parsons v Canadian Red Cross SOCiety, [1999] OJ No 3572 at para 1 (Sup Ct 1), BOAAFCO, Voh.une II, Tab 38. 14 The dates of original enactment in Ontario, Quebec and British Columbia were 1992, 1978 and 1995, respectively: Class Proceedings Act, 1992, SO 1992, c 6; Code o/Civil Procedure, RSQ c C-25, Book IX, art 999; Class Proceedings Act, RSBC 1996, c 50. The next provinces to enact class action legislation were Newfoundland and Labrador and Saskatchewan: Class Actions Act, SNL 2001, c C-18.l; Class Actions Act, SS 2001, c C-12.01. l5 Parsons v Canadian Red Cross Society, [1999] OJ No 3572 (Sup Ct J), BOAAFCO, Vol II, Tab 38. The Annual Report ofthe Joint Committee for the Period Ending December 31, 2014 at 1, para 3, BOAAFCO, Volume I, Tab 5, shows that ahnost 14,000 persons in Canada have been accepted as eligible class members. 16 Endean v Canadian Red Cross SOciety, [1997] BCJ No 1209 (SC), BOAAFCO, Volume I, Tab 14; Honhon c Canada (Procureur genera!), [1999] JQ No 4370 at para 1 (CS), BOAAFCO, Volume I, Tab 21. 17 There has since been a separate compensation scheme established for those who contracted Hepatitis C from blood transfusions before 1986 and after 1990. 18 See defmition of "Compensation Fund" in Joint Appellants' Record, Affidavit of Belinda Bain, Part TIl, Tab 4, Exhibit D, Pre-19861P0st-1990 Hepatitis C Settlement Agreement, art 1.01; Annual Report of the Joint Committee for the Period Ending December 31, 2013 at 2, para 4, BOAAFCO, Volume I, Tab 4.
6
basis. l9 The Government of Canada agreed that any interest earned on the amount advanced
would not be taxed. With interest and accrued investment income, it was anticipated that the
Fund would have $1,564,000,000 for potential distribution?O Due to the relatively robust markets
since 2000, the Fund did better than anticipated. As of December 31, 2014, the Fund paid out
approximately $832 million, and still had a balance of $1.13 billion, with a further $148.2
million in unpaid liability?l At the end of 2014, there remained $1.278 billion in available
proceeds. Those proceeds are managed by TD Asset Management and are under the supervision
ofa trustee, RBC Investment Services.22
(iii) The Compensation Scheme
16. There are two separate programs for compensation. The Hemophiliac HCV Plan
addresses hemophiliacs who contracted Hepatitis C from the regular infusion of blood products.
The Transfused HCV Plan addresses those non-hemophiliacs who were first infected with
Hepatitis C due to blood transfusions. These two plans were sanctioned by the Agreement.
Because the virus has a variable impact on people, the Fund will likely be paying benefits to
claimants for over 80 years?3
17. At the time, the settlement was the "largest settlement in a personal injury action
in Canadian history.,,24 Accordingly, it received, from the outset, "the highest degree of court
scrutiny. ,,25
18. The intent of the Agreement was to ensure that all Canadians affected by the
settlement would be treated fairly, consistently and in accordance with the agreed upon
settlement terms.
19 Annual Report of the Joint Committee for the Period Ending December 31, 2012, "Financial Statements of The 1986-1990 Hepatitis C Fund" at 4, para 2, BOAAFCO, Volume I, Tab 3. 20 Parsons v Canadian Red Cross SOCiety, [1999] OJ No 3572 at para 90 (SC), BOAAFCO, Volume II, Tab 38. 21 Annual Report of the Joint Committee for the Period Ending December 31, 2014 at 1, para 3, BOAAFCO, Volume I, Tab 5. 22 Annual Report of the Joint Committee for the Period Ending December 31, 2014 at 1, para 4, BOAAFCO, Volume I, Tab 5. 23 Parsons v Canadian Red Cross Society, [1999] OJ No 3572 at para 75 (SC), BOAAFCO, Volume II, Tab 38. 24 Parsons v Canadian Red Cross Society, [1999] OJ No 3572 at para 75 (SC) (approved on September 2, 1999 by Winkler J. as he then was), BOAAFCO, Volume II, Tab 38. 25 Parsons v Canadian Red Cross Society, [1999] OJ No 3572 at para 76 (SC) (approved on September 2, 1999 by Winkler J. as he then was), BOAAFCO, Volume II, Tab 38.
7
19. The Government of Canada, all ten provinces and all three territories in Canada
are signatories to the Agreement and agreed to be bound by its tenns?6 The Ontario court
eventually approved the settlement and certified a national class that included all Canadians
infected with Hepatitis C except residents of British Columbia and Quebec. All of the provinces
and territories except British Columbia and Quebec moved to be added as intervenors in the
Ontario actions at the time the Agreement was approved and agreed to be bound by its terms.27
20. The Agreement provides that all three Courts have jurisdiction to implement and
supervise the terms of the Agreement. British Columbia and Quebec courts have jurisdiction for
class members from their respective provinces, while Ontario has jurisdiction over a national
class with members from the remaining provinces and territories?8 The cooperation and
coordination of these three supervisory courts was anticipated and agreed to by all of the parties,
including the province of Ontario.
21. The Agreement requires that all three courts reach the same decision before
certain decisions specified in Article 10.01 of the Agreement can be effective. Article 10.01(1) of
the Agreement provides, in part, that:
22.
The Courts will issue judgments or orders in such form as is necessary to implement and enforce the provisions of this Agreement and will supervise the ongoing performance of this Agreement including the Plans and the Funding Agreement.
(2) All matters to be determined by the Courts pursuant to Section 10.01(1) will take effect only upon the date when the last jUdgement or order of the Courts becomes fmal without any material differences in the three judgments or orders.29
The provisions of Article 10.01 set out the scope of the Courts' supervision
(including the appointment of officials and approval or rescission of protocols) and the
conditions necessary for the order to become effective U e. a consensus between the three
26 Joint Appellants' Record, Reasons for Judgment of Winkler C.lO. dated May 24,2013, Part I, Tab 5 at para 6. 27 Joint Appellants' Record, Reasons for Judgment of Winkler C.lO. dated May 24, 2013, Part I, Tab 5 at para 6. 28 See definition of "Approval Orders" in Joint Appellants' Record, Affidavit of Belinda Bain, Part III, Tab 4, Exhibit D, Pre-1986IPost-1990 Hepatitis C Settlement Agreement, art 1.01. 29Joint Appellants' Record, Affidavit of Belinda Bain, Part III, Tab 4, Exhibit D, Pre-1986IPost-1990 Hepatitis C Settlement Agreement, art 10.01.
8
supervisory judges). In doing so, the three supervisory courts were in some ways merged into a
single administrative structure. To be clear, each court exercises its supervisory powers
independently and in accordance with that court's jurisdiction; however, all three courts
recognize that they use those powers collectively to oversee the Agreement to ensure the Fund is
administered fairly, effectively and in the interest of all claimants across Canada.3o In striving for
agreement, the Courts have a common interest in hearing similar evidence and submissions.
23. The Agreement does not impose any restrictions on the supervisory courts
regarding what procedures can be employed to ensure a just result. Since its inception, Chief
Justice Winkler, then Ontario's most experienced class action judge, had the responsibility to
supervise the settlement on behalf of the Ontario claimants. By the time of the respective
motions below on this appeal, the respective Chief Justices in Quebec and British Columbia were
also supervising the Agreement.
24. As for the benefits payable under the Agreement, there is a graduated
compensation scheme. At Levell are carriers of the antibody who are entitled to $10,000.31 As
the disease progresses, there is an increasing scale of payments. Cumulative payouts of $225,000
are available for those requiring liver transplants, or who suffer from cancer, kidney failure or
lymphoma.32 The amounts set out below are the compensation range:
(a) $10,000 - if claimant has Hepatitis C antibody;
(b) $20,000 - upon delivery of a PCR Test report which demonstrates a person has
the Hepatitis C Virus present in their blood samples;
(c) $30,000 - upon delivery of Administrator evidence demonstrating conditions set
out in Article 4.0l(c) of the Transfused HCV Plan;
Cd) $65,000 - upon delivery of Administrator evidence demonstrating conditions set
out Article 4.01(d) of the Transfused HCV Plan; and
30 Joint Appellants' Record, Reasons of Juriansz, LaForme and Lauwers JJ.A. dated March 13,2015, Part 1, Tab 1 at para 15. 31 Joint Appellants' Record, Transfused HeV Plan (Sched A) and Hemophiliac HeV Plan (Sched B), Part IV, Tabs 6 and 7, art 4. 32 Joint Appellants' Record, Transfused Hev Plan (Sched A) and Hemophiliac HeV Plan (Sched B), Part IV, Tabs 6 and 7, art 4.
25.
9
(e) $100,000 - upon delivery of Administrator evidence that he or she has had a liver
transplant or developed other conditions set out in Article 4.01 (e) of the
Transfused HCV Plan.33
To these amounts, claimants above level 3 are entitled to lost wages and lost
amenities?4 At the outset, there were holdbacks on the amounts of some of these benefits.35 As
the courts became more comfortable with the sufficiency of the Fund, those holdbacks were
lifted. Today, lost wage claims can be significant. In addition, there are entitlements to the
estates of Hepatitis C victims and for family members.36 Like all settlements, and particular
class actions settlements, the amount of individual compensation is a compromise and not
intended to replicate the utmost compensation to which a person might be entitled to after a full
trial.
26. Class members across Canada received notice of the settlement and were given
the option of opting out of the respective actions. A very small number of people did. In total,
almost 14,000 Canadians have participated in and benefited from the Agreement. 37
Approximately 8,500 of those class members belonged to the national class certified in Ontario
(with approximately 5,200 resident in Ontario and 3,200 resident in provinces and territories
other than British Columbia and Quebec).38 At year-end 2014, approximately $823.2 million in
benefits had been paid out to c1aimants?9
33 Joint Appellants' Record, Transfused HCV Plan (Sched A) and Hemophiliac HCV Plan (Sched B), Part IV, Tabs 6 and 7, art 4.0l. 34 Joint Appellants' Record, Transfused HCV Plan (Sched A) and Hemophiliac HCV Plan (Sched B), Part IV, Tabs 6 and 7, art 4.01-4.07. 35 Joint Appellants' Record, Transfused HCV Plan (Sched A) and Hemophiliac HCV Plan (Schoo B), Part N, Tabs 6 and 7, art 7. 36 Joint Appellants' Record, Transfused HCV Plan (Sched A) and Hemophiliac HCV Plan (Sched B), Part IV, Tabs 6 and 7, art 5-6. 37 At the time Chief Justice Winkler released his decision in the underlying motion (Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24, 2013, Part I, Tab 5) the number was just over 13,000. However, according to the 2014 Annual Report of the Joint Committee, the number of claimants has now reached almost 14,000. Annual Report of the Joint Committee for the Period Ending December 31, 2014 at 1, para 3, BOAAFCO, Volume I, Tab 5.
38 Joint Appellants' Record, Affidavit of Heather Rumble Peterson, Part III, Tab 1 at para 11. 39 Annual Report of the Joint Committee for the Period Ending December 31, 2014 at 1, para 3, BOAAFCO, Volume I, Tab 5.
10
27. Currently, there is an actuarial-calculated surplus in the Fund. How that surplus
will be allocated or alternatively returned to the federal government is a contested issue. The
potential allocation ofthe surplus may provide benefits to those who have not previously been
entitled to benefits, or increase benefits to the current members of the class. The future of any
surplus is a matter to be determined with the consensus ofthe supervisory Judges. Justice Perell
in his decision on the Late Claims Filing Protocol motion (defined below) recognized these
competing interests for the unallocated surplus and the possible outcomes for how those funds
are eventually distributed, including the possibility of cy-pres payments.40 Given the fact that this
key issue waits just over the horizon, the decision by this Court on the procedural flexibility
available to the supervisory Judges will be crucial to how those and other key issues will be
resolved going forward.
(iv) Fund Counsel and References
28. The Agreement resolved the common issues of liability and available quantum,
but there still remained the issue of individual entitlement. The CPA, like the class proceeding
legislation now in other provinces, provides for the determination of individual issues. Section
25 of the CPA provides the court with an array oftools to determine individual issues. These
tools include, under s.25(1)(b), the appointment of a person "to conduct a reference under the
rules of court and report back to the court," and under s.25(l)(c), "with due consent of the
parties, [the court may] direct that the issues be determined in any other manner.,,41
29. At first instance, the Agreement provides that an Administrator will determine the
issue of class eligibility and the extent of entitlement to benefits.42 In effect, the claimant files an
40 Joint Appellants' Record, Reasons for Perell J. Judgment of C.J.O. dated December 17,2013, Part I, Tab 4 at para 72. 41 Class Proceedings Act, 1992, SO 1992, c 6. See the corresponding provisions in the other provincial class action statntes: Class Actions Act, SNL 2001, c C-18.1, s 27; Class Proceedings Act, RSBC 1996, c 50, S 27; Class Proceedings Act, RSNB 2011, c 125, s 29; Class Proceedings Act, SA 2003, c C-16.5, s 28; Class Proceedings Act, SNS 2007, c 28, s 30; Code o/Civil Procedure, CQLR c C-25 .01, art 599-601; The Class Actions Act, SS 2001, c C-12.01, s 29; The Class Proceedings Act, CCSM 2002, c 14, S 27(1)-(7). 42 Joint Appellants' Record, Affidavit of Belinda Bain, Part III, Tab 4, Exhibit D, Pre-1986/Post-1990 Hepatitis C Settlement Agreement, art 5.02.
11
application with the Administrator who makes the determination. Crawford Adjusters Canada
was appointed as Administrator and conducts the administration from Ottawa for all claims.43
30. A claimant denied eligibility benefits by the Administrator has a right to have that
determination reviewed. A claimant has a choice of proceeding by either reference or
arbitration.44 The former allows the claimant to seek a further review by the court (i.e. have the
court accept or reject the referee's report), and the latter is final. Pursuant to the Agreement, the
Ontario court also appointed both referees and arbitrators to preside over the review of the
Administrator's decisions pertaining to claims by those seeking to be Ontario Claimants. In
accordance with the rules approved in the settlement, oral hearings could be requested by the
claimant. Where hearings are required, they are heard in the province or region where the
claimant currently resides.
31. As part ofthe settlement approval and Agreement, there is a fund counsel for each
of the approving courts that was appointed by the respective court. The fund counsel's role is to
defend the Administrator's decisions, if challenged by the claimants, and to defend and advance
the interest of the Fund.
32. Fund Counsel for Ontario has attended hearings with Ontario court-appointed
referees and arbitrators in most provinces and territories. These are full evidentiary hearings
complete with witnesses who testify under oath with cross-examinations. Summonses from
Ontario have been issued, principally, to hospitals and doctors to obtain records, including
doctors and hospitals outside Ontario.45 As a result, viva voce hearings authorized by the Ontario
Superior Court have been conducted across the country and summonses have been issued in
support of those hearings.
43 As referenced in Chief Justice Winkler's and the B.C. Court of Appeal's decision, the appointment of the administrator was the first occasion when the supervisory courts disagreed with each other. Ontario and British Columbia had approved another administrator. The Quebec court had considered the appointment of the administrator after the other two courts. Due to concerns raised in the interim, the initial proposed administrator was rejected by the Quebec Court. Crawford was subsequently appointed by all three courts. 44 Joint Appellants' Record, Affidavit of Belinda Bain, Part Ill, Tab 4, Exhibit D, Pre-19861P0st-1990 Hepatitis C Settlement Agreement, art 5.03. 45 Joint Appellants' Record, Affidavit of Belinda Bain, Part III, Tab 4 at para 8.
12
(v) Procedural History
33. On August 13, 2012, class counsel filed motions in the Ontario, Quebec and
British Columbia courts for approval of a proposed protocol that would extend the June 30,2010
deadline for filing first claims for benefits from the Fund ("Late Claims Filing Protocol"). The
impact of the proposal would be to allow Hepatitis C victims further time to apply for eligibility
to the Fund and to access the benefits of the Fund.
34. Class counsel proposed that, instead of having three separate motions in each of
the respective provinces, the three supervisory Judges could sit together so that they would hear
the same evidence and submissions. The proposed joint sitting was scheduled to occur on
September 18, 2012 in Edmonton, Alberta (the "Proposed Motion,,).46 The three supervisory
Judges (all Chief Justices of their respective courts) were in Alberta for a Canadian Judicial
Council meeting.
35. The AGO objected to Chief Justice Winkler sitting outside the territorial
boundaries of the province of Ontario and threatened to bring a motion on the basis that the court
lacked the jurisdiction to do so. As a result, the Proposed Motion was adjourned.47
36. In the absence of a motion by the AGO, class counsel in each province brought
motions for direction to resolve the jurisdictional objection raised by the AGO. On March 20,
2013, the motion before Chief Justice Winkler was heard.
37. On May 24, 2013, Chief Justice Winkler issued his decision and concluded that:
This motion raises a narrow procedural issue concerning the physical location of a hearing involving the pan-Canadian settlement agreement of the Hepatitis C class actions. No issue is taken with the composition of the class or with the court's personal and subject matter jurisdiction over the proceeding.
In the interests of promoting access to justice and judicial economy, the three supervisory courts were prepared to sit together to hear and determine a motion for directions regarding the extension of the time to
46 Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24,2013, Part r, Tab 5 at paras 12-13. 47 Joint Appellants' Record, Reasons for Judgment of Winkler C.I.O. dated May 24,2013, Part I, Tab 5 at para 14.
13
file claims under the settlement agreement. This was an instance of judicial cooperation intended to pennit the supervisory judges to efficiently and effectively hear submissions so that each court could render a decision on a matter within its own competence. In my view, AG Ontario's highly restrictive reading of the inherent jurisdiction of the Superior Court of Justice to control its own process is inimical to this judicial initiative. Furthennore, in my opinion, AG Ontario's proposed alternatives to a joint hearing, whether in the form of three duplicative hearings or a video-linked joint hearing, do not adequately address the goals of ensuring access to justice and judicial economy.
Access to justice is a national and, indeed, an international, issue. The Hepatitis C and Indian Residential Schools class actions are internationally recognized examples of Canadian class proceedings that provided access to justice to thousands of people who suffered common wrongs. The procedural vehicle of the class action has permitted these victims to obtain redress for the harms they have suffered. The tragic events that gave rise to the actions transcended provincial borders and were national in scope. The settlements were pan-Canadian in nature because of the need to avoid inefficiencies and costly duplication which would have ensued had the settlements been limited by provincial jurisdictions.
Within Canada's constitutional framework, the provincial and territorial superior courts are charged with the responsibility for certifying class actions, approving settlement agreements, and, ultimately, administering those settlements. The provincial superior courts have had to adapt their procedures to ensure that settlements of pan-Canadian class actions achieve their intended purpose in the most efficient and effective way possible.
Contrary to AG Ontario's position, I conclude that there is no constitutional, statutory or common law provision precluding the Superior Court of Justice from conducting a hearing outside Ontario. Where the Superior Court of Justice has subject matter and personal jurisdiction over a proceeding, the court may conduct a hearing outside the province as a function of its inherent jurisdiction to fully control its own process.
In deciding whether to exercise this discretion, the court should consider if sitting outside Ontario is in the interests of justice. In the class proceedings context where national or inter-provincial classes are involved, the interests of justice include the goals of achieving judicial economy and access to justice.48
48 Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24, 2013, Part I, Tab 5 at paras 52-57.
14
38. Chief Justice Winkler recognized that the exercise of the court's jurisdiction to sit
outside Ontario should arise "infrequently,,49 and, even then, should only be used "sparingly.,,5o
39. A similar motion was heard in British Columbia. Chief Justice Bauman held that
he had jurisdiction to sit outside British Columbia. He held that, by having a single hearing, the
courts could provide an efficient, effective and convenient method of fulfilling the terms of the
Agreement. Chief Justice Bauman found, in part, as follows:
40.
In my view, the Court hearing of the underlying application in these proceedings in Canada and outside British Columbia, would be an exercise of its jurisdiction for its territory, here British Columbia, over persons and a subject matter within its jurisdiction. I respectfully agree with Chief Justice Winkler (at para.41):
A court should exercise its discretion to hold a hearing outside its home province sparingly. However, the interests of justice may in certain situations be such that the court is entitled ~ indeed, perhaps even required - to exercise its jurisdiction to hold a hearing outside its home province. When the exercise of this discretion takes place in the context of a class proceeding, the recognized goals of achieving judicial economy and enhancing access to justice must be taken into account. Therefore, these goals must be considered in determining the location of the hearing. 51
Similarly, a motion was brought in Quebec. Chief Justice Rolland also agreed to
sit in Alberta. Chief Justice Rolland opined, in part as follows:
It is the Courts' responsibility, in the very particular context ofthis case and in the role they have been given, to establish the most appropriate course of action that will encourage the successful implementation of the Agreement.
Innovation is not only possible, but is occasionally required.
The Court is not hearing a case on merits. This is not a trial. The Court is exercising the role attributed by a settlement agreement in six class actions, in three different provinces, the implementation of which is ensured by the courts assigned to supervise it. The AGQ is a signatory to
49 Joint Appellants' Record, Reasons for Judgment of Winkler C.lO. dated May 24,2013, Part I, Tab 5 at para 4l. 50 Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24,2013, Part I, Tab 5 at para 43. 5J Endean v Canadian Red Cross Society, 2013 BCSC 1074 at para 24, BOAAFCO, Volume I, Tab 15.
15
this Agreement.
There is nothing in the Canadian constitution, the Courts of Justice Act or in the other legislative instruments that prevents the Court from sitting outside the territorial limits of Quebec. The origins and history of the deVelopment of the Court of Upper Canada and in Quebec, the provisions governing the distribution of powers between the two governments, the administration of justice, the jurisdiction and distribution of employees of the Superior Court of Quebec may not specifically authorize it but do not ban it either.
The Agreement, to which the AGQ is a party, allowed for six causes of action to be settled before three provincial jurisdictions. It implemented a process by which the Courts were to cooperate for the benefit of all the parties involved. To avoid contradictory orders, this cooperation necessarily requires openness to innovative solutions.
It is not desirable to confine three judges to their respective courtrooms when it is possible to gather them together in a single place to interact directly with counsel and witnesses.
Allowing a common hearing would not set a dangerous precedent, but rather, would a goodwill solution to implement the Agreement to the benefit of all the parties involved. 52
41. The Attorney Generals of Ontario and British Columbia, respectively,
appealed the decisions of Chief Justice Winkler and Chief Justice Bauman. The decision
of Chief Justice Rolland was never appealed.
42. The British Columbia Court of Appeal was the first appellate court to
weigh in. They overturned Chief Justice Bauman's decision on the basis that the received
English Common law prohibited Canadian provincial superior court judges from sitting
outside their home provinces. The Court also relied on its decision in Ewachniuk v. Law
Society of British Columbia,53 where the court held that the B.C. legislature could not
authorize the Law Society to sit outside British Columbia to conduct a disciplinary
52 Honhon c Canada (Attorney General), 2013 QCCS 2782 at paras 40-42,67, and 73-75, BOAAFCO, Volume I, Tab 22. 53 Ewachniukv Law Society (British Columbia), [1998] BCINo 372 (CA), BOAAFCO, Volume I, Tab 18.
16
hearing. 54 The Comt was concerned that permitting such extra-provincial sittings would
offend the territoriality principle. While the Court held that the supervisory Judges could
not sit outside the province, it also held that a hearing where judges physically sit outside
the province, but have a video link to a BC courtroom, does not actually constitute an
extra-provincial hearing. In such a circumstance, the hearing would be deemed to take
place inside British Columbia.55
43. The Ontario Court of Appeal released its decision in March 2015. The
three judges hearing the appeal each arrived at different conclusions.
44. Justice LaForme affirmed Chief Justice Winkler's holding that the court
had the inherent jurisdiction to sit outside Ontario to hear the proposed joint motion with
the other supervisory Judges. Justice LaForme held that there were no applicable
statutory, constitutional or common law impediments to impede the court's inherent
jurisdiction. Justice LaFonne carefully reviewed the AGO's argument as it related to
these issues and rejected them. LaForme J.A. disagreed with his two colleagues that the
open court principle embodied in s.135 of the Courts of Justice Act, was some fonn of a
limitation or prohibition on the court's inherent power to sit outside Ontario to preside
over a hearing. While the "open court" principle was "fundamental to our justice
system,,,56 it was not "absolute" and did not guarantee a "right to be physically present in
the courtroom.,,57 Justice LaFonne correctly held that a class proceeding judge utilizing
her discretion "may only be set aside on an error of law, a palpable and overriding error
of fact, the consideration of irrelevant factors or the omission of factors that ought to have
been considered or if the decision was unreasonable.,,58 This was a matter for the
discretion of the judge, and in this case Chief Justice Winkler exercised that discretion
reasonably. Justice LaFonne correctly held that Chief Justice Winkler considered the
54 Ewachniuk v Law Society (British Columbia), [1998] BCJ No 372 at paras 47·49 (CA), BOAAFCO, Volume I, Tab 18. 55 Endean v Canadian Red Cross Society, 2014 BCCA 61 at para 35, BOAAFCO, Volume I, Tab 17. 56 Joint Appellants' Record, Reasons of Juriansz, LaForme and Lauwers JJ.A. dated March 13, 2015, Part I, Tab 1 at para 140. 57 Joint Appellants' Record., Reasons of Juriansz, LaFonne and Lauwers JJ.A. dated March 13, 2015, Part I, Tab 1 at para 142. 58 Joint Appellants' Record, Reasons of Juriansz, LaForme and Lauwers JJ.A. dated March 13, 2015, Part I, Tab 1 citing 1250264 Ontario Inc v Pet Vatu Canada, 2013 ONCA 279, BOAAFCO, Volume I, Tab 1.
17
appropriate factors, including the availability of a video link, and found no basis to
interfere. In particular, it was a matter of discretion, not a requirement, as to whether
there is a video linle In so concluding, LaForme lA. said:
45.
In my view, it is not for this court to second guess that finding made by a judge with considerable experience in managing complex class action proceedings. His decision was based upon the record before him and no one has pointed this court to any palpable and overriding error of fact made by him. Nor has anyone satisfied me that his decision, in all the circumstances ofthis case, is unreasonable.59
Justice Juriansz's decision was heavily influenced by his interpretation of
s.135 of the Courts of Justice Act, which provides that "all court hearings shall be open to
the public." Juriansz lA. interpreted that to mean that all hearings "must be held in an
Ontario courtroom open to the public.,,6o In his view, this was an express statutory
prohibition on the court's ability to exercise its inherent jurisdiction in the manner
contemplated by Chief Justices Winkler, Bauman and Rolland, as well as Justice
LaForme. However, in spite of this statutory prohibition, Juriansz J.A. also found that
rule 1.08 could be employed to satisfy the open court requirement under s. 135 of the
Courts of Justice Act. Like the Be Court of Appeal, Juriansz IA. found that a hearing
will still be considered to take place in Ontario where the judge sits outside Ontario, if
there is a video link to an open Ontario courtroom.
46. Justice Lauwers split the difference between Justices LaFonne and
Juriansz. First, Lauwers J.A. agreed with LaForme J.A. (and the three supervisory Chief
Justices) that the court can rely on its inherent jurisdiction to sit outside Ontario.
However, Justice Lauwers also agreed with Juriansz J.A. that s.135 acts as a statutory
limitation on the court's ability to do so. Where Justice Lauwers departs from Justice
Juriansz is on whether rule 1.08 is sufficient to cure this statutory roadblock. Justice
Lauwers states that he does not subscribe to the "legal fiction" that a hearing that
physically takes place outside Ontario is deemed legally to take place in Ontario if there
59 Joint Appellants' Record, Reasons of Juriansz, LaFonne and Lauwers JJ.A. dated March 13, 2015, Part I, Tab 1 at para 163. 60 Joint Appellants' Record, Reasons of Juriansz, LaFonne and Lauwers JJ.A. dated March 13, 2015, Part I, Tab 1 at para 216.
18
is a video link to an Ontario courtroom. Because a video link satisfies the requirement
under s. 135 of the Courts of Justice Act, the only obstacle is the lack of authority for an
Ontario judge to sit outside the province. According to Lauwers 1., the court must resort
to its inherent jurisdiction to do so.
47. In sum, all 9 judges who have considered this question have found some
legal basis to permit a joint hearing where the supervisory Judges can sit together in the
same courtroom. However, there is very little agreement on what that legal basis is.
48. As for the Late Claims Filing Protocol motion itself, the parties had to
abandon the prospect of a joint motion. Given the length of the appeal process and the
AGO's ongoing objection to a joint hearing, the parties proceeded to bring separate
motions in the three supervisory courts. There was no consensus among the supervisory
Judges with respect to the issues raised by the motion, so none of the orders are
effective. 61 The process is now at a standstill as the parties attempt to resolve the issues
around the Late Claims Filing Protocol. The Late Claims Filing Protocol motion is
anticipated to be addressed again this June as part of the three courts' assessment of what
should be done with the surplus. This failure has highlighted the very inefficiencies in the
current approval process that informed the decisions of the three supervisory Judges.
49.
(a)
PART II - STATEMENT OF ISSUES
Fund Counsel takes the position that:
Superior Court Judges are not prohibited in all circumstances from sitting outside
their home province to preside over a motion hearing. Accordingly, Fund Counsel
takes the position that:
(i) There is no constitutional, statutory or common law impediment to a
superior court judge sitting outside his or her home province;
61 Joint Appellants' Record, Reasons for Perell J. Judgment of C.J.O. dated December 17, 2013, Part I, Tab 3; Endean v Canadian Red Cross Society, 2014 BCSC 621, BOAAFCO, Volume I, Tab 16; Honhon c Canada (Procureur general), 2014 QCCS 2032, BOAAFCO, Volume I, Tab 23.
50.
19
(ii) Neither s.135 nor Ru1e 1.08 provide a statutory basis for or restriction
against an Ontario superior court judge's power to sit outside Ontario;
(iii) The "open court principle" does not require the use of a video link
between the hearing location and a courtroom in the home province;
(iv) The court can rely on its inherent jurisdiction to sit outside Ontario to hear
a motion; and
(b) The supervisory Judges reasonably exercised their discretion to utilize the courts'
inherent j urisdiction to sit outside their respective home provinces.
PART III - ARGUMENT
A. SUPERIOR COURT JUDGES NOT PROHIBITED FROM SITTING OUTSIDE HOME PROVINCE
(i) No Constitutional or Common Law Impediment to Sitting Outside Home Province
There is no constitutional impediment to a judge of the superior court of justice
exercising his or her discretion to hold a hearing outside Ontario in circumstances where it is in
the interest of justice to do so. The Constitution Act, 1867 (U.K.) does not deal with the physical
location of where a judge of the superior court can sit, nor is there anything that confines the
jurisdiction of the superior courts to a particular geographic location.
51. In fact, there is nothing in the constitutional underpinnings of the superior courts
limiting where a judge must be when he or she adjudicates matters that are properly within the
court's jurisdiction. In the present appeal, all parties agree that Ontario has jurisdiction over the
subj ect matter of the proceeding and personal jurisdiction over the parties. 62
52. In the appeal below, the AGO provided a dozen or so examples of statutory
tribunals that were authorized to sit outside Ontario and adjudicate matters within its
62 Professor Janet Walker makes the same observation in her article, "Are National Class Actions Constihrtional? -A Reply to Hogg and McKee" (2010) 48 OHLJ 95, BOAAFCO, Volume II, Tab 29.
20
jurisdiction.63 The fact that the provincial legislature has repeatedly extended extra-provincial
powers to adjudicators to sit outside Ontario is evidence that, at least in the Legislature's view,
such extra-provincial sittings are not in themselves unconstitutiona1.64
53. All of which is consistent with the general thrust of inter-provincial cooperation
championed in this Court's decision in Morguard. 65
54. The rigid view that would restrict judges in all circumstances from sitting outside
their respective provinces, without consideration to issues of access to justice and judicial
economy, is heavily informed by a 19th century worldview and ignores the practical realities that
exist in multi-jurisdictional national class actions. In her article, "Interprovincial Sovereign
Immunity Revisited," Professor Janet Walker wrote this about that rigid view:
55.
The notion that the Canadian provinces are "sovereign" vis a vis one another as this relates to court jurisdiction appears, then, to have been a passing view, applied with little critical consideration of the differences between interprovincial and foreign relations, and now overtaken by recent developments in the law of interprovincial comity in court jurisdiction. The increasing demands for litigation convenience and judicial economy, especially as witnessed in the advent of multiprovince class proceedings, promise to provide a strong practical impetus to overcome the barriers to consolidating claims arising in the distribution of products and services throughout Canada.66
Federalism is a fundamental and organizing constitutional principle in Canada.
What might be offensive in the international context in terms of encroachments on another
state's sovereignty, may not be the case within the borders of our federal state. As this Court
63 Consolidated Hearings Act, RSO 1990, c C29, s 9(1); Environmental Review Tribunal Act, 2000, SO 2000, c 26, Sch F, s 3; National Defence Act, RSC 1985, c N-5, s 68; Natural Resources Conservation BoardAct, RSA 2000, c N-3, s 21(4); Railways Act, SNS 1993, c ll, s 47(2); Responsible Energy Development Act, SA 2012, c R-17.3, s 18(4); Securities Act, RSA 2000, c S-4, s 24; Securities Act, RSNB 2004, c S-5.5, s 23(3); Securities Act, RSO 1990, c S5, s 3.5(1); Securities Act, SNu 2008, c 12, s 55; Securities Act, SNWT 2008, c 10, s 55; Securities Act, SY 2007, c 16, s 55. 64 Of course, a statutory tribunal does not have the inherent jurisdiction of a superior court (see Werbeski v Ontario (Director of Disability Support Program, Ministry of Community & Social Services), 2006 SCC 14 at para 16, BOAAFCO, Volume II, Tab 47). 65 Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 at paras 41, BOAAFCO, Volume II, Tab 34. 66 Janet Walker, "Interprovincial Sovereign Immunity Revisited" (1997) 35 OHLJ 2 at 396, BOAAFCO, Volume II, Tab 30.
21
described in Morguard, the courts of a fellow province are "not a foreign state but a partner in
Confederation.,,67 This Court went on to say:
56.
[T]here is really no comparison between the interprovincial relationships of today and those obtaining between foreign countries in the 19th century. Indeed, in my view, there never was and the courts made a serious error in transposing the rules developed for the enforcement of foreign judgments to the enforcement of judgments from sister~provinces. The considerations underlying the rules of comity apply with much greater force between the units of a federal state, and I do not think it much matters whether one calls these rules of comity or simply relies directly on the reasons of justice, necessity and convenience to which I have already adverted. Whatever nomenclature is used, our courts have not hesitated to cooperate with courts of other provinces where necessary to meet the ends of • • 6& Justice.
In its leave application, the AGO appeared to step away from its constitutional
argument and now takes the position that there is statutory authority for the three supervisory
Judges convening to hear submissions in one province if there is a video link back to an Ontario
courtroom. As such, there appears to be no constitutional objection to the supervisory Judges
sirting as a single panel involved in a single hearing even where, necessarily, at least two of the
judges would be sitting outside their home province.
57. As to the common law restrictions, it is submitted there is no operative territorial
restriction when addressing our federal constitutional structure. Class counsel has canvassed this
issue thoroughly in its factum. To avoid duplication, Fund Counsel will limit its argument in this
area, except to say that the English common law, to the extent that it is relevant, must be
interpreted in a manner that is consistent with our federal system. In this regard, it is submitted
that LaForrne J.A. correctly set out the lack of a common law prohibition stating:
As previously indicated, I agree with the motion judge's analysis and conclusion that the common law does not prohibit a superior court judge from sitting outside the physical boundaries of the judge's province.
Historical English common law is not determinative of the jurisdictional issue before this court. While Morguard is also not determinative, the policy reasons reflected in that case are instructive. The Supreme Court's observations, at para. 35, that flexibility serves the ends of "justice, necessity and convenience" and that
67 Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 at para 24, BOAAFCO, Volume II, Tab 34. 68 Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 at para 35, BOAAFCO, Volume II, Tab 34.
(ii)
58.
22
"our courts have not hesitated to cooperate with courts of other provinces where necessary to meet the ends of justice," apply with equal force here.69
No Statutory Prohibition Against an Ontario Superior Court Judge Sitting Outside Ontario
In the absence of any constitutional impediment, the question becomes whether
there is any statutory provision that prohibits a superior court judge from sitting outside the
province. Two of the justices of the Ontario Court of Appeal relied on s.l35 of the Courts of
Justice Act, which embodies the open court principle, and rule 1.08, which addresses video
technology in arriving at their decision.
59.
60.
Section 135 provides:
135.(1) Subject to subsection (2) and rules of court, all court hearings shall be open to the public.
Exception
(2) The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.
Justices Juriansz and Lauwers both took this provision to mean that Ontario courts
were required to provide its residents a "reasonably accessible Ontario courtroom" where they
could attend a hearing (unless there was a possibility of serious harm or injustice). In other
words, absent a "physical" courtroom in Ontario, section 135 would necessarily be breached.
61. However, the open court principle in a federal state such as Canada need not be so
narrowly circumscribed. Holding a hearing outside Ontario would not derogate from the core
purposes of the open court principle as identified by the Honourable Justice Wilson in her
concurring judgment in Edmonton Journal v. Alberta (Attorney General):
... the public interest in open trials and in the ability of the press to provide complete reports of what takes place in the courtroom is rooted in the need (l) to maintain an effective evidentiary process; (2) to ensure a jUdiciary and juries that behave fairly and that are sensitive to the values espoused
69 Joint Appellants' Record, Reasons of Juriansz, LaForme and Lauwers JJ.A. dated March 13, 2015, Part I, Tab 1 at paras 114-115.
62.
system:
63.
23
by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them. 70
In Vancouver Sun (Rej,71 this Court expressed the essence of the open court
Public access to the courts guarantees the integrity of judicial processes by demonstrating "that justice is administered in a non-arbitrary manner, according to the rule of law". Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public's understanding of the administration of justice. Moreover, openness is a principal component ofthe legitimacy ofthe judicial process and why the parties and the public at large abide by the decisions of courts. 72 [citations omitted]
The fundamental purpose that animates the open court principle is not the fiction
that every citizen has access to the physical courtroom where the hearing takes place, but that the
court's business will be conducted in the open where it can be properly scrutinized by the public.
This is a point eloquently made by the Honourable James Chalmers McCruer in the Royal
Commission Inquiry into Civil Rights:
64.
Courts of justice are and should continue to be open to the public. But only a few members ofthe public can attend personally in the courts at anyone time. The remainder must depend for their information on the established means of communication: the press, the radio and the television. The openness of the courts is one of the basic safeguards of the right of the individual to a fair and just trial; it has a disciplinary effect on the bench, on counsel and on witnesses. "Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.,,73
In tying the open court principle to the availability of a physical courtroom in
Ontario, both Justices Juriansz and Lauwers misconstrued the fundamental purpose behind the
open court principle, which requires only that justice be done in the light, not in the shadows
beyond scrutiny of the press and the general public. As Louis D. Brandeis famously wrote about
70 Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at para 61, BOAAFCO, Volume I, Tab 13. 71 2004 SCC 43, BOAAFCO, Volume II, Tab 44. 72 Vancouver Sun (Re), 2004 SCC 43 at para 25, BOAAFCO, Volume II, Tab 44. 73 James Chalmers McCruer, Royal Commission Inquiry into Civil Rights, Reports (Toronto; Queen's Printer, 1968), Report No 1, vol lat 50, BOAAFCO, Volume II, Tab 28. See also Canadian Broadcasting Corp v New Brunswick, [1996] 3 SCR480 at para 27, BOAAFCO, Volume I, Tab 7.
24
open government, "Sunlight is said to be the best of disinfectants.,,74 This Appellant submits the
open court principle is not intended to ensure access to all who wish to attend a proceeding. In
CBC v. New Brunswick, [1996] 3 SCR 480, Justice La Forest explained:
65.
At this point, however, I should like to make a number of caveats to the recognition of the importance of public access to the courts as a fundamental aspect of our democratic society. First of all, this recognition is not to be confused with, nor do I wish to be understood as affirming a right to be physically present in the courtroom. Circumstances may produce a shortage of physical space·, such that individual members of the media and the public may be denied physical access to the courts. In such circumstances, those excluded may have to rely on those present to relay information about the proceedings.75 [emphasis added]
Openness to scrutiny is a fundamental element that must be satisfied to meet the
open court requirement, physical access is not. Justice LaForme in the appeal below echoed this
when he stated:
66.
... the open court principle does not guarantee the right to be physically present in the courtroom. And the principle must yield when its strict application would render the administration of justice unworkable. In this way, the open court principle does not serve as an automatic bar to out-of-province hearings. Instead, as I discuss below, the principle is an important factor to consider when a judge exercises his or her discretion to direct the precise contours of an out-of-province hearing. 76
The location of a courtroom in Ontario does not, practically speaking, tell you
anything about the accessibility of that courtroom to a resident of Ontario. To a person living in
Kenora, a physical courtroom in Winnipeg is more accessible than a courtroom in Windsor.
67. The requirement that there be a physical location in Ontario where the hearing is
heard also raises fairness issues in the context of a national class action. Once a court takes
jurisdiction over class members from other provinces, it should not create a two-tier system that
prefers class members from the court's home province. The Ontario court's responsibility is not
just to Ontarians but to all class members over whom the court has jurisdiction. !fthe operability
of the open court principle is contingent on citizens of a province being able to attend a
74 Cited by this Court in Ontario (Public Safety and Security) v Criminal Lawyers' Association, 2013 SCC 23 at para 37, BOAAFCO, Volume 11, Tab 37. . 75 Canadian Broadcasting Corp v New Brunswick, [1996] 3 SCR480 at para 27, BOAAFCO, Volume I, Tab 7. 76 Joint Appellants' Record, Reasons of Juriansz, LaFonne and Lauwers JJ.A. dated March 13,2015, Part r, Tab 1 at para 148.
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courtroom in their home province, then it can never be satisfied in the context of a national class
action. This Appellant submits that Juriansz lA. erred in finding that s.135 of the Courts of
Justice Act prohibits the court from holding a hearing outside Ontario, and Lauwers J.A. erred in
finding that s.135 limited the exercise of the court's inherent jurisdiction such that a video link
was required in order for the court to exercise its discretion to sit outside the province.
68. In any event, the open court principle is not absolute. This Court has recognized
that where fairness dictates in the appropriate circumstances, the open court principle can (and
must) yield to other interests: 77
Furthermore, this Court has noted on previous occasions that public access to certain judicial processes would render the administration of justice unworkable; see MacIntyre, supra. The importance of ensuring that the administration of justice is not rendered unworkable provides a palpable reason for prohibiting public access to many of the other types of processes of which the intervener makes mention. Indeed, as we have seen in this case, the open court principle itself must yield to circumstances that would render the proper administration of justice unworkable.78 [emphasis added]
In the circumstances of a national class action, it is submitted that Ontario's interest in an open
court should yield to the larger interests of "access to justice" and 'judicial economy," in respect
of a pan-Canadian settlement of a national tragedy. These larger interests animated the Chief
Justices' decisions at first instance to sit in Alberta.
69. There are also serious issues with the purported cure put forward by Juriansz and
Lauwers JJ.A. Both justices believed that a video link to an Ontario courtroom cured the
statutory roadblock that s.135 presented. They disagreed, however, on the legal basis for that
cure. Justice Juriansz held that rule 1.08, which permits the use ofvideoconferencing, effectively
made the presence of a judge and the lawyers in another province permissible as the proceeding
would be deemed to take place in Ontario.
70. Justice Lauwers rejected what he called the "legal fiction" that a hearing could
take place in an empty Ontario courtroom, simply because it is video-linked to a courtroom
outside of Ontario. Instead, Lauwers J.A. found that the court can resort to its inherent
77 Named Person v Vancouver Sun, 2007 SCC 43 at para 91, BOAAFCO, Volume II, Tab 35; Joint Appellants' Record, Reasons ofJuriansz, LaForme and Lauwers JJ.A. dated March 13,2015, Part I, Tab 1 at para 148. 78 Canadian Broadcasting Corp v New Brunswick, [1996] 3 SCR 480 at para 29, BOAAFCO, Volume I, Tab 7.
26
jurisdiction to authorize the extra-provincial sitting (so long as the open court principle IS
satisfied via the use of a video link to an Ontario courtroom).
72. In the end, both of the solutions proposed by Lauwers and luriansz JJ.A. are made
possible only by the authorization of the use of video link technology under rule 1.08. This is an
odd result. It effectively means that a rule about what technology can be used in a courtroom,
and passed by a sub-delegated body (the Civil Rules Committee), has the power to confer
jurisdiction on superior court judges to sit outside their home provinces where they otherwise
could not. That is a tremendous weight to place on the tiny shoulders of rule 1.08. A plain
reading of Rule 1.08 does not suggest that the Rules Committee was addressing where a judge
may sit.79 It was facilitating the feed of evidence into a courtroom.
73. Rule 1.08 only came into force in 1999. Ifrule 1.08 is the lynchpin to permitting a
judge to sit outside Ontario, then the courts' inherent jurisdiction to sit outside Ontario was
inoperable until that time. Moreover, the repeal of rule 1.08 by the Rules Committee would in
fact repeal a judge's ability to rely on his or her inherent jurisdiction to sit outside the province.
If inherent jurisdiction does permit a judge to sit outside the province, the repeal of that
jurisdiction by repealing 1.08 would run contrary to the existing jurisprudence that says inherent
jurisdiction must be ousted expressly, if it is to be ousted at alL
(iii) Inherent Jurisdiction of the Court to Sit Outside Home Province
74. In the absence of constitutional and statutory limitations on where a judge may sit,
the court must consider whether the inherent jurisdiction of the court gives it authority to sit
outside the province to hear a matter within its jurisdiction. It is submitted that inherent
jurisdiction does provide such authority.
79 It is worth noting that in the text, The Law of Civil Procedure in Ontario, 1s1 Edition, by Justice Paul M. Perell and Fonner Associate ChiefJustice John W. Morden, no mention is made of rule 1.08 conferring jurisdiction upon the court to sit anywhere in Canada. Former Associate Chief Justice Morden was a member of the Civil Rules Committee from 1974-1999, and was chair of the Committee from 1990 to 1999, the year when rule 1.08 came into force. Justice Perell was a member of the Secretariat of the Civil Rules Committee for the Court of Appeal for Ontario and the Superior Court of Justice from t 985 to 2005, at which time he was appointed to the bench.
27
75. The constitutional framework that surrounds the exercise of a superior court's
inherent jurisdiction was described by Justice Karakatsanis in Ontario v. Criminal Lawyers'
Association ("CLA") in this manner:
76.
Canada's provincial superior courts are the descendants of the Royal Courts of Justice and inherited the powers and jurisdiction exercised by superior, district or county courts at the time of Confederation (Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at pp. 326-27, per Estey J.). As such, superior courts playa central role in maintaining the rule of law, unifonuity in our judicial system and the constitutional balance in our country. 80
One key attribute of provincial superior courts is the ability to exercise its
inherent jurisdiction to fill procedural gaps to ensure that justice is done in the absence of
statutory guidance. Justice Karakatsanis in CLA cited favourably the definition put forward by
LH. Jacob in his article, "The Inherent Jurisdiction of the Court":
77.
The inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process oflaw, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.81
Because these powers are meant to be "drawn upon as necessary," the courts will
sometimes need to resort to its inherent jurisdiction when faced with new procedural challenges
for which no statutory solution exists. The different fonus that the utilization of inherent
jurisdiction may take is not static or frozen in time.
78. The penuissible exercises of inherent jurisdiction are not restricted to only those
exercised by the English courts prior to Confederation. While the Court does recognize that
Canada's provincial superior courts "inherited the powers and jurisdiction exercised by superior,
district or county courts at the time of Confederation," it does not limit the present exercise of
inherent jurisdiction to those particular historical powers. As set out above, the definition
80 Ontario (Public Safety and Security) v Criminal Lawyers' Association, 2013 SCC 23 at para 17, BOAAFCO, Volume II, Tab 37. 81 Ontario (Public Safety and Security) v Criminal Lawyers' Association, 2013 SCC 23 at para 20, BOAAFCO, Volume II, Tab 37, quoting from ill Jacob, "The Inherent Jurisdiction of the Court" (1970) 23 CUff Legal Probs 23, BOAAFCO, Volume 1, Tab 27. See also R v Cunningham, 2010 see 10 at para 18, BOAAFCO, Volume II, Tab 40, where this Court explained that the court could exercise its inherent jurisdiction when needed to "ensure the machinery of the court functions in an orderly and effective manner."
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describes inherent jurisdiction prospectively as a tool the courts can draw on to deal with
problems as they become "necessary."
79. The static view of inherent jurisdiction is not only inconsistent with eLA but is
entirely at odds with how inherent jurisdiction has actually been exercised by courts over the
past 150 years. In the UK Supreme Court decision in Al-Rawi v. The Security Service, Lord
Dyson acknowledged the dynamic and evolving nature of how the courts exercise their inherent
jurisdiction:
80.
There are many examples of the court in the exercise of its inherent power introducing procedural innovations in the interests of justice. Thus it invented the power to grant Mareva injunctions and make Anton Piller orders. These orders were devised to prevent misuse of the court's procedure and to ensure that its procedure is effective. The [Public Interest Immunity] procedure was also a creature of the common law devised by the court in the exercise of its inherent power to regulate its own procedures.82
The constant evolution of the uses of inherent jurisdiction is precisely why it is so
integral to the functioning of provincial superior courts. As expressed by Chief Justice Rolland,
"innovation is not only possible, but is occasionally required."s3
81. One area where innovation is required is the administration of national class
action settlements. This Court has recognized the important role class proceedings play in our
ci vii justice system in ensuring fair, efficient and accessible justice to all Canadians. In 2001,
when this Court wrote its first trilogy of cases on class proceedings, the courts in Ontario,
Quebec and British Columbia were embarking on a truly unique experience as to how to manage
complex multi-jurisdictional cases. As already mentioned, these were the only jurisdictions with
comprehensive class action legislation.
82 Al-Rawi v The Security Service, [2011] UKSC 34 at para 20, BOAAFCO, Volume I, Tab 2, as cited in Ontario (Public Safety and Security) v Criminal Lawyers' Association, 2013 SCC 23, BOAAFCO, Volume II, Tab 37; Chite! v Rothbart, [1982] OJ No 3540 (CA), BOAAFCO, Volume I, Tab 10, statements made per MacKinnon A.c.1.O., Arnup 1., and Goodman lJ.A., concurring, as to when Mareva injunctions may be granted; Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36, BOAAFCO, Volume I, Tab 9. 83 Honhon c Canada (Procureur general), 2013 QCCS 2782 at para 41, BOAAFCO, Volume I, Tab 22.
29
82. This Court expressly confirmed that in the context of class actions the courts must
remain flexible with respect to their processes to ensure that procedural inefficiencies do not
work to frustrate substantive justice:
83.
The courts of equity applied a liberal and flexible approach to whether a class action could proceed. They "continually" sought a proper balance between the interests of fairness and efficiency"; Kazanjian, supra, at p. 411. As stated in Wallworth v. Holt (1841), 4 My & Cr. 619,41 E.R. 238, at p. 244, "it [is] the duty of this Court to adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules, established under different circumstances, to decline to administer justice, and to enforce rights for which there is no other remedy.,,84
In Western Canadian Shopping Centre,85 Hollick86 and Rumly,87 this Court
provided guidance as to how class proceedings should be governed, the necessity for class
proceedings for all Canadians and how to address the challenges faced by class proceedings. As
noted in Western Canadian Shopping, the historic aim of courts in joining actions was to provide
"complete justice," that is, to "arrange all the rights which the decision ultimately affects.,,88
84. In Western Canadian Shopping, this Court relied upon its inherent jurisdiction to
mandate class proceedings in each province. Absent a legislative response, the courts were urged
"to fill the void under their inherent power to settle the rules as to disputes brought before them."
In doing so, this Court acknowledged that it would be "difficult to anticipate all of the procedural
complexities that may arise.,,89 The Court recognized that where procedural complexities arose,
the courts would be required to approach these issues "in a flexible and liberal manner, seeking a
balance between efficiency and fairness.,,9o
85. This is just what the Chief Justices, at first instance, attempted to do in this case
when they found that, in the absence of any statutory or constitutional impediment, the court
could rely on its inherent jurisdiction to sit outside its home province and thus facilitate the
84 Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at para 23, BOAAFCO, Volume II, Tab 48. 85 Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46, BOAAFCO, Volume II, Tab 48. 86 Hollick v Toronto (City), 2001 sec 68, BOAAFCO, Volume I, Tab 20. 8? Rumley v British Columbia, 2001 SCC 69, BOAAFCO, Volume II, Tab 4l. 88 Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at para 19, BOAAFCO, Volume II, Tab 48. 89 Western Canadian Shopping Centres Inc v. Dutton, 2001 SCC 46 at para 51, BOAAFCO, Volume II, Tab 48. 90 Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at para 51, BOAAFCO, Volume II, Tab 48.
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proposed joint hearing with all the supervisory Judges sitting together.
86. The failure of the Legislature to create a comprehensive scheme to deal with
multi-jurisdictional issues in Canadian class actions has not gone unnoticed by the courts. In the
decision below on this appeal, Justice LaForme made the following observation:
87.
... the Supreme Court of Canada in Canada Post Corp. v. Lepine, 2009 SCC 16 (CanLII), [2009] 1 S.C.R. 549, at para. 57, urged provincial legislatures to develop a legislative framework for national class actions:
[T]he provincial legislatures should pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space.
Provincial legislatures have not, as yet, responded to the Supreme Court's call to action. And, as the Supreme Court first noted in Western Canadian Shopping Centres, at para. 34, "[a]bsent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them. ,,9l
In recent years, the courts have made it clear that access to justice is a key
component to our civil justice system. The importance of protecting the public's access to
the courts was recently reaffmned by this Court in Hryniak v. Mauldin.92 In addressing
summary judgments where Justice Karakatsanis wrote:
This appeal concerns the values and choices underlying our civil justice system, and the ability of ordinary Canadians to access that justice. Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot be compromised.
Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice.
91 Joint Appellants' Record, Reasons of Juriansz, LaForme and Lauwers n.A. dated March 13, 2015, Part I, Tab 1 at paras 86-88. 92 2014 SCC 7, BOAAFCO, Volume II, Tab 25.
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This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible - proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. 93 .
88. This Court has recognized that the principle of access to justice is fundamental to
the rule of law.94 In Trial Lawyers Association of British Columbia,95 this Court held that the
s.96 courts in Canada have a special constitutional role in protecting the rule of law, and by
extension, protecting Canadians' access to the justice system. Chief Justice McLachlin wrote:
89.
The s. 96 judicial function and the rule oflaw are inextricably intertwined. As Lamer C.J. stated in MacMillan Bloedel, II [i]n the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act, 1867, the provincial superior courts are the foundation of the rule oflaw itself' (para. 37). The very rationale for the provision is said to be lithe maintenance of the rule oflaw through the protection of the judicial role": Provincial Judges Reference, at para. 88. As access to justice is fundamental to the rule oflaw, and the rule oflaw is fostered by the continued existence of the s. 96 courts, it is only natural that s. 96 provide some degree of constitutional protection for access to justice.96 [emphasis added]
Section 96 courts not only have a responsibility to provide "constitutional
protection for access to justice," they are, by virtue of being courts of inherent jurisdiction,
uniquely situated to achieve this objective because of the inherent powers the courts possess.
Where the courts have the ability to use their inherent powers to promote access to justice, as the
courts did in this case, they should do so.
90. This Appellant submits this is precisely what has happened in the absence of a
comprehensive statutory scheme to deal with national class actions. As Justice Winkler noted,
93 Hryniak v Mauldin, 2014 SCC 7 at paras 23, 25 and 28, BOAAFCO, Volwne 1I, Tab 25. 94Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 39, BOAAFCO, Volume 11, Tab 43. 95 Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, BOAAFCO, Volume II, Tab 43. 96 Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 at para 39, BOAAFCO, Volume II, Tab 43.
32
the "recognized goals of achieving judicial economy and enhancing access to justice must be
taken into account. .. in determining the location of the hearing.',97
91. However, this inherent jurisdiction must be wielded responsibly given the
seemingly inexhaustible ways that a court may use its inherent jurisdiction power. This Court
made this very clear in R. v. Caron, where Justice Binnie wrote: "Of course the very plenitude of
this inherent jurisdiction requires that it be exercised sparingly and with caution.,,98 Justice
Karakatsanis advised similar caution in CLA with respect to the court's use of its inherent
jurisdiction to appoint amici curiae, saying that it "should be used sparingly and with caution, in
response to specific and exceptional circumstances.,,99
92. The judicious use of the court's inherent jurisdiction expressed above is consistent
with the "good sense" principle enunciated in Hunt v. T&N pic. 100 In Hunt, the Court was
considering whether the courts in one province could decide on the constitutionality of another
province's statute. The Court ultimately decided that a court could, but was alert to concerns
about the potential havoc that could ensue if a blitz of constitutional challenges of provincial
statutes were brought in the courtrooms of other provinces. In allaying these concerns, Justice La
Forest relied on the "good sense" of the courts to consider such challenges:
93.
I agree that, because of the far-reaching impact of such rulings, the courts should restrict themselves to hearing constitutional challenges to the legislation of other provinces only where there is a real interest affected in their province. Unfortunately, there are intractable "chicken and egg" problems: if the extraterritorial effects of the law are themselves a prerequisite to the British Columbia court taking jurisdiction, then who is to determine that such extraterritorial effects exist in a particular case? The process must begin somewhere, and we must rely on the good sense of our superior courts in the respective provinces to not gratuitously assume jurisdiction.101 [emphasis added]
This Appellant submits that the application of a "good sense" principle by
superior court judges will prevent the overly liberal use of the court's jurisdiction to sit outside
97 Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24,2013, Part I, Tab 5 at para 43. 98 Rv Caron, 2011 SCC 5 at para 30, BOAAFCO, Volume II, Tab 39. 99 Ontario v Criminal Lawyers Association, 2013 SCC 43 at para 47, BOAAFCO, Volume II, Tab 37. 100 [1993] 4 SCR 289, BOAAFCO, Volume II, Tab 26. 101 Hunt v T&N pIc, [1993] 4 SCR 289 at para 40, BOAAFCO, Volume II, Tab 26.
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its home province. All of this is consistent with Chief Justice Winkler's decision below where he
stated:
94.
A court should exercise its discretion to hold a hearing outside its home province sparingly. However, the interests of justice may in certain situations be such that the court is entitled - indeed, perhaps even required - to exercise its jurisdiction to hold a hearing outside its home province. When the exercise of this discretion takes place in the context of a class proceeding, the recognized goals of achieving judicial economy and enhancing access to justice must be taken into account. Therefore, these goals must be considered in determining the location of the hearing. lo2 [emphasis added]
As for the discussion about whether the court's inherent jurisdiction to hold extra-
provincial hearings should be limited to "paper hearings," we submit that this issue is not
factually before the Court. The original underlying joint motion hearing contemplated by the
three supervisory Judges was in fact a paper hearing. The Ontario Court of Appeal declined to
comment on the prospect of hearings with viva voce evidence. The weighing of competing
factors such as the need for viva voce evidence would no doubt inform a judge's decision on
whether to sit outside their home province. For the time being, this Court should not impose any
blanket rules that fetter a judge's discretion until an appropriate appeal arises from facts that give
life to some of these issues.
95.
A. If the Court Does Have Jurisdiction to Sit Outside Ontario, Should It Exercise that Discretion in the Circumstances of this Case
(i) Standard of review
This Appellant submits that, in the circumstances of this case, the supervisory
Judges exercised their discretion to authorize a sitting outside their home provinces reasonably.
Justice LaForme applied the correct standard of review to a class proceeding judge utilizing her
discretion. Such an order "may only be set aside if there is an error oflaw, a palpable or
overriding error of fact, the consideration of irrelevant factors or the omission of factors that
ought to have been considered or if the decision was unreasonable."lo3
102 Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24, 2013, Part J, Tab 5 at para 43. 103 Joint Appellants' Record, Reasons of Juriansz, LaFonne and Lauwers JJ.A. dated March 13,2015, Part I, Tab 1 at para 154 citing 1250264 Ontario Inc v Pet Valu Canada, 2013 ONCA 279 at para 40, BOAAFCO, Volume 1, Tab 1.
34
96. In CIBC v. Green, this Court held a similar standard of deference applied to the
exercise of a court1s inherent jurisdiction (in that case the granting of a nunc pro tunc order):
96.
The standard that ordinarily applies to a judge's discretionary decision on whether to grant an order nunc pro tunc is that of deference: if the judge has given sufficient weight to all the relevant considerations, an appellate court must defer to his or her exercise of discretion. However, if the judge's discretion is exercised on the basis of an erroneous principle, an appellate court is entitled to intervene. 104
In this case, Chief Justice Winkler had been supervising this settlement since
1999. He had some 14 years of familiarity with the issues. It is submitted his decision is owed
significant deference and ought not to be interfered with.
(ii) Exercise of Discretion
97. In this case, the three supervisory courts were faced with a motion which was
intended to extend the timeline for filing applications to seek admissibility as class members. For
those requiring late filing, the motion was an issue of accessibility to the benefits of a class
proceeding. For them, these motions were first and foremost about "access to justice." The
innovative solution put forward by the supervisory Judges was a reasonable exercise of the
Courts' jurisdiction.
98. It is worth noting that the supervisory Judges in this case have already
exercised authority outside their respective provinces. While the three supervisory Judges
have not sat together to hear significant motions, they have participated in joint extra
provincial activities. For example, the Judges of all three Courts have held information
meetings with counsel during which the supervisory Judges have been updated on the
nature of contested motions and have provided informal feedback.
99. In January 2010, the Joint Committee filed a motion for approval of a
coinmunications plan pertaining to the June 30, 2010 First Claim Deadline. The Judges
and counsel met in Toronto to discuss that motion. The Courts provided counsel for the
104 CIRC v Green, 2015 SCC 60 at para 95, BOAAFCO, Volume I, Tab 11; 1250264 Ontario Inc v Pet Valu Canada Inc, 2013 ONCA 279 at para 40, BOAAFCO, Volume I, Tab 1.
35
parties with their feedback, which was subsequently reflected in Orders entered in each
jurisdiction.
100. In a number of similar cases the courts have already fashioned unique
solutions to procedural problems that arise in the context of multi-jurisdictional class
actions. These solutions relate to both the operation of courts administering class actions
and settlements and also for those executing the functions authorized by the court, which
are necessary to ensure that fair and efficient settlements are available to all Canadians.
101. For example, in March 2007, the supervisory Judges from six provinces
and three territories were considering a motion for approval of a settlement related to the
Residential Schools class action claims. Rather than conduct nine separate hearings, the
judges from Ontario, British Columbia, Quebec, Alberta, and Saskatchewan sat together
in Calgary to hear the motion, while the Superior Courts of Manitoba, Yukon, the
Northwest Territories, and Nunavut were linked to the Alberta courtroom by telephone
conference. 105
102. The Residential Schools class actions settlement was a similar case to the
one now before the court. The settlement in Residential Schools was national in scope
and similarly arose out of a terrible tragedy. Like the present case where Ontario has
jurisdiction over class members outside Ontario, in the Residential Schools settlement,
Ontario was also granted "jurisdiction over the claims of the current residents of. .. New
Brunswick, Newfoundland and Labrador, Nova Scotia and Prince Edward Island, as well
as over the claims of those persons no longer resident in Canada.,,106
103. Furthermore, the supervisory Courts in the Residential Schools class
actions settlement adopted a "Court Administration Protocol" which created a
streamlined process to address all matters that required court orders in an efficient and
d· . 107 expe ItlOus manner.
105 Joint Appellants' Record, Reasons for Judgment of Winkler C.I.O. dated May 24, 2013, Part I, Tab 5 at para 37. 106 Baxter v Canada (Attorney GeneraV (2006), 83 OR (3d) 481 at paras 5 (Sup Ct J), BOAAFCO, Volume I, Tab 6. 107 Fontaine v Canada (Attorney GeneraV, 2014 ONSC 283, BOAAFCO, Volume I, Tab 19.
36
104. In Webb v K-Mart (1), Justice Brockenshire considered how to best handle
individual claims made by class members outside Ontario in the wake of another class
action settlement. One of the key issues was deteImining the place and manner that
references would take place so that the process would not be overly burdensome for class
members outside Ontario. In the absence of any express statutory rules or binding
precedent, Justice Brockenshire ordered that the references take place outside Ontario in
the locations where the class members resided. Justice Brockenshire observed:
105.
These general statements leave it to the courts, in the absence of legislative structure or previous binding precedents, to try to fashion the details of just how to accomplish the general broad policy goals III a particular case.
In my view, the situation demands hearings of the claims for damages of the individual class members in or near the place of residence, or at least the place of fOImer employment, of each of the claimants regardless of Provincial boundaries.1o
In the motion for leave to appeal of Justice Brockenshire's decision, Justice
MacFarland denied leave and stated:
106.
In my view there is nothing particularly troubling about the court holding hearings outside of Ontario where a national class has been certified. It is a sensible solution to a practical problem. If all those class members out of Ontario were required to come to Ontario to participate in the suit it would in all likelihood put any remedy out of their reach. The evidence is that many of the claims are modest in monetary terms. Their right to redress would be largely illusory because there are unlikely to individually institute suit where their claims are modest. 109
In this case, the courts with the approval of all parties have authorized hearings
outside the home provinces to deteImine the individual issues arising from references, which
occur across Canada. This is part of the Agreement approved by all the parties and the court. As
described above, Fund Counsel has attended these hearings with Ontario court-appointed
referees and arbitrators in most provinces and territories. These are full evidentiary hearings
complete with witnesses and cross-examinations. Summonses have been issued to hospitals and
doctors in various provinces. While the source of the judicial power to direct a reference and
108 Webb v K-Mar! (I), [1999] OJ No 3285 at paras 22-24 (Sup ct J), BOAAFCO, Volume 11, Tab 45. 109 Webb v K-Mart (II), [1999] OJ No 3286 at para 6 (Sup Ct J), BOAAFCO, Volume II, Tab 46.
37
appoint a referee is statutory (i.e. rules 54 and 55 of the Rules of Civil Procedure), the orders
directing that they take place outside Ontario are not. It would therefore be an odd result if a
referee had the authority to sit outside the province to conduct a hearing, when the judge who
appointed her could not.
107. This is a special area of concern for Fund Counsel because of the potential impact
a decision denying a judge's ability to sit outside the province could have on the legitimacy of
the numerous references that have already taken place. Any decision that narrows the jurisdiction
of the Ontario supervisory Judge in this action may have the unintended consequence of
restricting the powers the referees require to preside over their respective references.
108. There are other examples of courts conducting novel hearings, even with non-
Canadian judges. For example, joint hearings have occurred in the insolvency proceedings of
Nortel llO and after the Lac-Magnetic disaster. In the Lac-Magnetic case, the court in Quebec
referred with approval to the decision authorizing the Quebec court, in this case, to sit in
Alberta. III
109. The present case involves the co-ordination and co-operation of three provincial
courts who have been supervising the settlement fund for over 16 years now. The decision that
was under consideration at the original motion that gave rise to this appeal was whether the
deadline for filing claims should be extended. Each of the Chief Justices recognized that the fair
and efficient resolution of this issue was best served if they all heard the argument together. It is
submitted that the motion judges' decisions should be accorded significant deference and ought
not be interfered with.
110. Justice Winkler expressly acknowledged that the prospect of exercising
jurisdiction to sit outside the province should only occur where the court had subject matter and
personal jurisdiction. He further indicated that the need to sit outside the province will happen
"infrequently" and that the jurisdiction should be exercised "sparingly." He indicated that "multi
jurisdictional class actions with extra provincial class members,,112 may, on occasion, require the
llO Norte! Networks Corp, Re (2009), 56 CBR (5th) 74 (Ont Comm List), BOAAFCO, Volume II, Tab 36. 111 Montreal, Maine & Atlantic Canada Co (Montreal, Maine & Atlantique Canada Cie), Re, 2015 QCCS 5896 at paras 17-19, BOAAFCO, Volume II, Tab 33. . 112 Joint Appellants' Record, Reasons for Judgment of Winkler C.I.O. dated May 24, 20l3, Part I, Tab 5 at para 42.
38
use of the discretion to meet "recognized goals of achieving judicial economy and enhancing
access to justice.,,113
111. The specific concerns animating Chief Justice Winkler's decision to approve a
joint hearing outside Ontario were as follows:
The underlying motion before this court seeks to extend the deadline in the Hepatitis C settlement agreement for filing first claims. This will require the judges of the superior courts of Ontario, British Columbia and Quebec to independently exercise their discretion pursuant to their supervisory jurisdiction over the settlement agreement. Under the terms of the settlement agreement, for an order of the courts to take effect, the courts must issue orders without material difference. The orders would be issued and entered in each judge's respective home province.
It is apparent that holding a single hearing instead of three will save expense and valuable resources. Equally important is that a single hearing will help to avoid potential additional costs by facilitating the process of rendering consistent judgments as mandated by the settlement agreement. Should the courts reach inconsistent orders, the parties may be required to re-attend, thereby requiring further legal costs that would be borne by the settlement trust.
The risk of inconsistent decisions is a very real concern and not merely hypothetical. This scenario has unfolded previously in these proceedings. After the approval of the settlement agreement, a motion to obtain approval of the Administrator of the settlement agreement was brought in each of the three courts. Three separate and consecutive hearings were held in Ontario, British Columbia and Quebec. The courts in Ontario and British Columbia approved the administrator recommended by class action counsel, whereas the Quebec court raised concerns about that appointment and called for more evidence and submissions. In the end, the Quebec court approved a different administrator. The Ontario and British Columbia courts were provided with the transcripts of the Quebec proceeding and issued subsequent orders approving the Administrator approved by the Quebec court.
A joint hearing of all three supervisory courts avoids to the greatest extent possible - in keeping with the principle of judicial independence - the potential for inconsistent orders and the costs associated therewith. A joint hearing ensures that the supervisory judges will receive the same oral and written submissions and will be able to confer directly with one another before issuing an order on the merits. 114
113 Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24,2013, Part I, Tab 5 at para 43. 114 Joint Appellants' Record, Reasons for Judgment of Winkler C.J.O. dated May 24,2013, Part I, Tab 5 at paras 44-47.
39
112. In fact, as described above with respect to the still outstanding resolution of the
Late Filing Claims Protocol motions, Chief Justice Winkler's words proved prophetic.
(iii) Real Lives, Real Consequences
113. The story of the tainted blood supply captured the attention of the entire country.
How our justice system executes on the promise to compensate these victims will properly attmct
the scrutiny of all Canadians.
114. The jurisdictional issues in this case are not merely academic. The tainted blood
tragedy has affected thousands of Canadians. The victims are not contained to particular
communities, provinces, or regions. The reach of this tragedy is truly national in scope. The
delays caused by the current model actually impact real people. All of the supervisory Judges
understood this.
115. Victims who are waiting for the timely resolution of their claims depend
on the efficient administration of the Agreement to do so. The delays caused by the
current motion process may be the difference between a victim (and his or her family)
receiving compensation for injuries suffered and someone not surviving long enough to
make such a claim.
116. The administration of the Agreement is a complex, interprovincial enterprise that
requires a progressive and flexible approach to ensure that it is done fairly and efficiently. As
stated above, the difficulty in holding three separate hearings in Ontario, British Columbia, and
Quebec arises out of the requirement in s. 10.01(2) of the Agreement that provides that
judgments and orders of the respective Courts only take effect upon the date that the last
judgment or order becomes final, without any material difference.
117. A fund that purports to compensate victims but cannot do so because of
procedural shortcomings (and the inflexibility of the courts to adjust accordingly) erodes the
public's faith in our legal system. Perhaps Chief Justice Winkler best identified these
expectations in respect of the Residential Schools class action settlement:
40
... the role of the court in a class proceeding does not terminate at the point of settlement approval. It has an ongoing obligation to oversee the implementation of the settlement and to ensure that the interests of the class members are protected .
... the court must be in a position to effectively evaluate the administration and the performance of the administrator and, further, be empowered to effect any changes that it ftnds necessary to ensure that the beneftts promised under the settlement are being delivered. ll5
118. To be clear, it is not being proposed that s.96 judges should adopt a "have
gavel, will travel" approach. In fact, it is more likely that the discretion will be used
"sparingly" but in appropriate cases such as this, the use of the discretion is reasonable.
In any event, any excesses would be subject to appellate review and where appropriate,
the direction of this Court.
119. Justice Krever's comment that "the compassion of a society can be judged
by the measures it takes to reduce the impact of tragedy on its members" applies equally
to how our judicial system, and in particular, our class action regime responds to
Canadians facing the fallout of a national tragedy. It is for this reason that s.96 judges
should not be unduly restrained in using their inherent jurisdiction to provide necessary,
but measured, innovations where appropriate.
PART IV - SUBMISSIONS ON COSTS
120. Fund Counsel does not seek its costs and asks that no costs be awarded against it.
PARTV-ORDERSOUGHT
121. Fund Counsel respectfully submits that its appeal be allowed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
ALLAGHAN, FUND COUNSEL F R ONTARIO
115 Baxter v Canada (Attorney General) (2006), 83 OR (3d) 481 at paras 50-51 (Sup Ct J), BOAAFCO, Volume I, Tab 6.
41
PARTS VI - TABLE OF AUTHORITIES
Tab Document Para Ref. in Factum
1 1250264 Ontario Inc v Pet Valu Canada Inc, 2013 ONCA 279 44,95-96
2 AI-Rawi v The Security Service, [2011] UKSC 34 79
3 Arumal Report of the Joint Committee for the Period Ending 15
December 31, 2012
4 Annual Report of the Joint Coriunittee for the Period Ending 15
December 31, 2013
5 Annual Report of the Joint Committee for the Period Ending 14-15,26
December 31, 2014
6 Baxter v Canada (Attorney General) (2006), 83 OR (3d) 481 102,117
(Sup Ct J).
7 Canadian Broadcasting Corp v New Brunswick, [1996] 3 SCR 63-64,68
480
8 Canadian Red Cross Society / Societe Canadienne de la Croix 10
Rouge, Re, 2000 CanLII 22488 (Ont Sup Ct J)
9 Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 79
10 Chitel v Rothbart, [1982] OJ No 3540 (CA) 79
11 CIBC v Green, 2015 SCC 60 96
12 Conseil Scolaire Francophone De La Colombie-Britannique v British Columbia, 2013 SCC 42
13 Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 61
1326
14 Endean v Canadian Red Cross Society, [1997] BCJ No 1209
14 (SC)
15 Endean v Canadian Red Cross Society, 2013 BCSC 1074 39
42
16 Endean v Canadian Red Cross Society, 2014 BCSC 621 48
17 Endean v Canadian Red Cross Society, 2014 BCCA 61 42
18 Ewachniuk v Law Society (British Columbia), [1998] BCJ No 42
372 (CA)
19 Fontaine v Canada (Attorney General), 2014 ONSC 283 103
20 Hollick v Toronto (City), 2001 SCC 68 83
21 Honhon c Canada (Procureur genera!), [1999] JQ No 4370 14 (CS)
22 Honhon c Canada (Procureur genera!), 2013 QCCS 2782 40, 80
23 Honhon c Canada (Procureur general), 2014 QCCS 2032 48
24 Horace Krever, Final Report: Commission oflnquiry on the 9-11
Blood System in Canada, Volumes I and III, Ottawa, 1997
25 Hryniakv Mauldin, 2014 SCC 7 87
26 Hunt v T&Nplc, [1993] 4 SCR289 92
27 IH Jacob, "The Inherent Jurisdiction of the Court" (1970) 23 76
Curr Legal Probs 23
28 J ames Chalmers McCruer, Royal Commission Inquiry into Civil Rights, Reports (Toronto: Queen's Printer, 1968), Report No 1, 63 Volume 1
29 Janet Walker, "Are National Class Actions Constitutional? - A
51 Reply to Hogg and McKee" (2010) 48 OHLJ 95
30 Janet Walker, "Interprovincial Sovereign Immunity Revisited"
54 (1997) 35 OHLJ 2
31 Janis Sarra, Creditor Rights and the Public Interest: Restructuring Insolvent Corporations (Toronto: University of 13-14 Toronto Press, 2003)
43
32 MacMillan Bloedel Ltd v Simpson, [1995] SCJ 101
33 Montreal, Maine & Atlantic Canada Co (Montreal, Maine & 108
Atlantique Canada Cie), Re, 2015 QCCS 5896
34 Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 53,55
35 Named Person v Vancouver Sun, 2007 SCC 43 68
36 Nortel Networks Corp, Re (2009), 56 CBR (5th) 74 (Ont Comm 108
List)
37 Ontario (public Safety and Security) v Criminal Lawyers' 64, 75-76, 79, 91
Association, 2013 SCC 23
38 Parsons v Canadian Red Cross Society, [1999] OJNo 3572 (SC) 14-17,26
39 R v Caron, 2011 sce 5 91
40 R v Cunningham, 2010 sec 10 76
41 Rumley v British Columbia, 2001 sec 69 83
42 Sutherland v Canadian Red Cross SOCiety (1994), 17 OR (3d) 12
645 (Gen Div)
43 Trial Lawyers Association of British Columbia v British 88
Columbia (Attorney Genera!), 2014 sec 59
44 Vancouver Sun (Re), 2004 sec 43 62
45 Webb v K-Mart (I), [1999] OJ No 3285 (Sup et J) 104
46 Webb v K-Mart (II), [1999] OJ No 3286 (Sup et J) 105
47 Werbeski v Ontario (Director or Disability Support Program,
52 Ministry of Community & Social Services), 2006 sec 14
44
48 Western Canadian Shopping Centres Inc v Dutton, 2001 sec 4 82-84
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
45
PART VII - STATUTES AND REGULATIONS
Class Actions Act, SNL 2001, c C-18.1, s 27
Class Proceedings Act, 1992, SO 1992, c 6, ss 12, 25
Class Proceedings Act, RSBC 1996, c 50, s 27
Class Proceedings Act, RSNB 2011, c 125, s 29
Class Proceedings Act, SA 2003, c C-16.5, s 28
Class Proceedings Act, SNS 2007, c 28, s 30
Code of Civil Procedure, CQLR c C-25.01, art 599-601
Consolidated Hearings Act, RSO 1990, c C29, s 9(1)
Courts of Justice Act, RSO 1990, c C43, s 135
Courts of Justice Act, RSO 1990, Reg 194, r 1.08
Environmental Review Tribunal Act, 2000, SO 2000, c 26, SchF,s3
National Defence Act, RSC 1985, c N-5, s 68
Natural Resources Conservation Board Act, RSA 2000, c N-3, s 21(4)
Railways Act, SNS 1993, ell, s 47(2)
Responsible Energy Development Act, SA 2012, c R-17.3, s 18(4)
Securities Act, RSA 2000, c S-4, s 24
Securities Act, RSNB 2004, c S-5.5, s 23(3)
Securities Act, RSO 1990, c S5, s 3.5(1)
Securities Act, SNu 2008, c 12, s 55
Securities Act, SNWT 2008, c 10, S 55
Securities Act, SY 2007, c 16, S 55
The Class Actions Act, SS 2001, c C-12.01, S 29
46
23 The Class Proceedings Act, CSSM 2002, c 14, s 27(1)-(7)
Determination of common issues
47
Class Actions Act SNL 2001, Chapter C-18.1
27. (1) Where the court detennines common issues in favour of a class or subclass and detennines that there are issues, other than those that may be determined under section 32, that are applicable only to certain individual members of the class or subclass, the court may
(a) determine the individual issues in further hearings presided over by the judge who dete1TI1ined the common issues or by another judge of the court; (b) appoint one or more persons including, without limitation, one or more independent experts, to conduct an inquiry into the individual issues under the Rules of the Supreme Court, 1986 and report to the court; or (c) with the consent of the parties, direct that the individual issues be determined in another manner.
(2) The court may give necessary direction relating to the procedure to be followed in conducting a hearing, inquiry or determination under subsection (1).
(3) In giving direction under subsection (2), the court shall choose the least expensive and most expeditious method of determining the individual issues that is consistent with justice to members of the class or subclass and the parties and, in making that choice, the court may
(a) dispense with a procedural step that it considers unnecessary; and (b) authorize special procedural steps, including steps relating to examinations for discovery, and special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate.
(4) The court shall set a reasonable time within which individual members of the class or . subclass may make claims under this section respecting the individual issues.
(5) A member of the class or subclass who fails to make a claim within the time set under subsection (4) may not later make a claim under this section respecting the issues applicable only to that member except with leave of the court.
(6) The court may grant leave under subsection (5) where it is satisfied that
(a) there are grounds for relief; (b) the delay was not caused by the fault of the person seeking the relief; and (c) the defendant would not suffer substantial prejudice if leave were granted.
(7) Unless otherwise ordered by the court making a direction under paragraph (l)( c), a determination of issues made in accordance with paragraph (1)( c) is considered to be an order of the court. 2001 cC-18.1 s27
48
Class Proceedings Act, 1992 SO 1992, Chapter 6
Consolidation Period: From June 22, 2006 to the e-Laws currency date.
Last amendment: 2006, c.19, Sched.C, s.1(1).
Court may determine conduct of proceeding
12. The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate. 1992, c. 6, s. 12.
Individual issues
25. (1) When the court determines common issues in favour of a class and considers that the participation of individual class members is required to determine individual issues, other than those that may be determined under section 24, the court may,
(a) determine the issues in further hearings presided over by the judge who dete111lined the common issues or by another judge of the court;
(b) appoint one or more persons to conduct a reference under the rules of court and report back to the court; and
(c) with the consent of the parties, direct that the issues be determined in any other marmeT. 1992, c. 6, s. 25 (1).
Directions as to procedure
(2) The court shall give any necessary directions relating to the procedures to be followed in conducting hearings, inquiries and determinations under subsection (l), including directions for the purpose of achieving procedural conformity. 1992, c. 6, s. 25 (2).
Idem
(3) In giving directions under subsection (2), the court shall choose the least expensive and most expeditious method of determining the issues that is consistent with justice to class members and the parties and, in so doing, the court may,
(a) dispense with any procedural step that it considers unnecessary; and
(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate. 1992, c. 6, s. 25 (3).
Time limits for making claims
(4) The court shall set a reasonable time within which individual class members may make claims under this section. 1992, c. 6, s. 25 (4).
Idem
(5) A class member who fails to make a claim within the time set under subsection (4) may not later make a claim under this section except with leave of the court. 1992, c. 6, s. 25 (5).
49
Extension of time
(6) Subsection 24 (9) applies with necessary modifications to a decision whether to give leave under subsection (5). 1992, c. 6, s. 25 (6).
Determination under cl. (l)(e) deemed court order
(7) A determination under clause (1 ) (c) is deemed to be an order of the court. 1992, c. 6, s. 25 (7).
Class Proceedings Aet RSBC 1996, Chapter 50
Determination of individual issues
27 (1) When the court determines common issues in favour of a class or subclass and determines that there are issues, other than those that may be determined under section 32, that are applicable only to certain individual members of the class or subclass, the court may
(a) determine those individual issues in further hearings presided over by the judge who determined the common issues or by another judge of the court,
(b) appoint one or more persons including, without limitation, one or more independent experts, to conduct an inquiry into those individual issues under the Supreme Court Civil Rules and report back to the court, or
(c) with the consent of the parties, direct that those individual issues be determined in any other manner.
(2) The court may give any necessary directions relating to the procedures that must be followed in conducting hearings, inquiries and determinations under subsection (1).
(3) In giving directions under subsection (2), the court must choose the least expensive and most expeditious method of determining the individual issues that is consistent with justice to members of the class or subclass and the parties and, in doing so, the court may
(a) dispense with any procedural step that it considers unnecessary, and
(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate.
(4) The court must set a reasonable time within which individual members of the class or subclass may make claims under this section in respect of the individual issues.
(5) A member of the class or subclass who fails to make a claim within the time set under subsection (4) must not later make a claim under this section in respect of the issues applicable only to that member except with leave of the court.
(6) The court may grant leave under subsection (5) if it is satisfied that
( a) there are apparent grounds for relief,
(b) the delay was not caused by any fault of the person seeking the relief, and
(c) the defendant would not suffer substantial prejudice ifleave were granted.
50
(7) Unless otherwise ordered by the court making a direction under subsection (1) (c), a detennination of issues made in accordance with subsection (1) (c) is deemed to be an order of the court.
Class Proceedings Act RSNB 2011, el25
Determination of issues affecting certain individuals
29(1) If the court determines common issues in favour of a class or subclass and determines that there are issues, other than those that may be determined under section 34, that are applicable only to certain individual class or subclass members, the court may
(a) determine those individual issues in further hearings presided over by the judge who detennined the common issues or by another judge of the court,
(b )appoint one or more persons, including one or more independent experts, to conduct a reference into those individual issues under the Rules of Court and report back to the court, or
(c )with the consent of the parties, direct that those individual issues be determined in any other manner.
29(2) The court may give any necessary directions relating to the procedures that shall be followed in conducting hearings, references and determinations under subsection (1).
29(3) In giving directions under subsection (2), the court shall choose the least expensive and most expeditious method of detennining the individual issues that, in the opinion ofthe court, is consistent with justice to the class or subclass members and the parties and, in doing so, the court may
(a)dispense with any procedural step that it considers unnecessary, and
(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate.
29(4) The court shall set a reasonable time within which individual class or subclass members may make claims under this section in respect of the individual issues.
29(5) A class or subclass member who fails to make a claim within the time set under subsection (4) shall not later make a claim under this section in respect ofthe individual issues applicable to that member except with leave of the court.
29(6) The court may grant leave under subsection (5) if, in the opinion of the court,
(a)there are apparent grounds for relief,
(b )the delay was not caused by any fault of the person seeking the relief, and
(c )the defendant would not suffer substantial prejudice if leave were granted.
29(7) Unless otherwise ordered by the court making a direction under paragraph (l)(c), a determination of issues made in accordance with that paragraph is deemed to be an order of the court. 2006, c.C-S.1S, s.29
51
Class Proceedings Act SA 2003, Chapter C-16.5
Determination of individual issues
28(1) If, in determining any cornmon issues in favour of a class or subclass, the Court determines that there are issues, other than those that may be determined under section 32, that are applicable only to certain individual class members or subclass members, the Court may
(a) determine those individual issues in further hearings presided over by the judge who determined the common issues or by another judge of the Court,
(b) appoint one or more persons, including, without limitation, one or more independent experts, to conduct an inquiry into those individual issues under the Rules of Court and report back to the Court, or
(c) with the consent of the parties, direct that those individual issues be determined in any other manner not referred to in clause (a) or (b).
(2) The Court may give any directions that the Court considers appropriate relating to the procedures that are to be followed in conducting hearings, inquiries and determinations under subsection (1).
(3) In giving directions under subsection (2), the Court is to choose the least expensive and most expeditious method of determining the individual issues that, in the opinion of the Court, is consistent with justice to the class members, the subclass members and the parties and, in doing so, the Court may
(a) dispense with any procedural step that the Court considers unnecessary, and
(b) establish, to the extent that the Court considers appropriate,
(i) special procedural steps, including steps relating to discovery, to be taken, and
Oi) special rules, including rules relating to admission of evidence and means of proof, to be followed.
(4) The Court must set a reasonable time within which individual class members or subclass members may make claims under this section in respect of the individual issues.
(5) If, with respect to individual issues, a class member or subclass member fails to make a claim within the time set under subsection (4), that member may, with the permission of the Court, make a claim under this section at a later time with respect to the issues that are applicable only to that member.
(6) The Court may grant permission under subsection (5) only if the Court is satisfied that
(a) there are apparent grounds for relief,
(b) the delay was not caused by any fault of the person seeking the relief, and
(c) the defendant will not suffer substantial prejudice if permission is granted.
(7) Where the Court makes a direction under subsection (1 )( c), a determination of issues made pursuant to that direction is, unless otherwise ordered by the Court, deemed to be a determination by the Court.
52
Class Proceedings Act SNS 2007, C 28
Determination of issues affecting certain individuals 30 (1) Where the court determines common issues in favour of a class or subclass and determines that there are issues, other than those that may be determined under Section 35, that are applicable only to certain individual class or subclass members, the court may
(a) determine those individual issues in further hearings presided over by the judge who determined the common issues or by another judge ofthe court; (b) appoint one or more persons, including, without limiting the generality ofthe foregoing, one or more independent experts, to conduct a reference into those individual issues under the Civil Procedure Rules and report back to the court; or ( c) with the consent of the parties, direct that those individual issues be determined in any other manner.
(2) The court may give any necessary directions relating to the procedures that shall be followed in conducting hearings, references and determinations under subsection (l).
(3) In giving directions under subsection (2), the court shall choose the least expensive and most expeditious method of determining the individual issues that, in the opinion ofthe court, is consistent with justice to the class or subclass members and the parties and, in doing so, the court may
(a) dispense with any procedural step that it considers unnecessary; and (b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate.
(4) The court shall set a reasonable time within which individual class or subclass members may make claims under this Section in respect of the individual issues.
(5) A class or subclass member who fails to make a claim within the time set under subsection (4) shall not later make a claim under this Section in respect of the individual issues applicable to that member except with leave of the court.
(6) The court may grant leave under subsection (5) if, in the opinion of the court,
(a) there are apparent grounds for relief; (b) the delay was not caused by any fault ofthe person seeking the relief; and (c) the defendant would not suffer substantial prej udi ce if leave were granted.
(7) Unless otherwise ordered by the court making a direction under clause (l)(c), a determination of issues made in accordance with that clause is deemed to be an order of the court. 2007, c. 28, s.30.
53
Code of Civil Procedure CQLR c C-25.01
Section III - Individual Recovery of Claims 599. A jUdgment ordering individual recovery specifies what issues remain to be decided in order to determine individual claims. It sets out the content of the judgment notice to class members, which must include explanations as to those issues and as to the information and documents to be provided in support of an individual claim and any other information determined by the court. Within one year after the publication of the notice, class members must file their claim with the office of the court in the district where the class action was heard or in any other district the court specifies.
600. The court determines the claim of each class member or orders the special clerk to determine it according to the procedure it establishes. The court may determine special methods of proof and procedure for such purpose.
601. At the trial of an individual claim, the defendant may urge against a claimant a preliminary exception that this Title did not earlier permit against the representative plaintiff.
Consolidated Hearings Act RSO 1990, Chapter C29
Consolidation Period: From December 15,2009 to the e-Laws currency date. Last amendment: 2009, c. 33, Sched. 2, s. 18.
Sittings 9. (1) A joint board shall sit at such times and places as the chair of the joint board may designate and, for the purposes of proceedings before it, the joint board may sit jointly either within or outside Ontario with any tribunal established under the law of another jurisdiction. R.S.O. 1990, c. C.29, s. 9 (1)
Courts of Justice Act RSO 1990, c C 43
Consolidation Period: From November 3, 2015 to the e-Laws currency date.
Public hearings 135. (1) Subject to subsection (2) and rules of court, all court hearings shall be open to the pUblic.
Exception
(2) The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.
Disclosure of information
(3) Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.
54
Courts of Justice Act RRO 1990, Regulation 194
Consolidation Period~ From January 1,2016 to the e-Laws currency date.
Telephone and Videoconferences - Where Available
1.08 (1) If facilities for a telephone or video conference are available at the court or are provided by a party, all or part of any of the following proceedings or steps in a proceeding may be heard or conducted by telephone or video conference as permitted by subrules (2) to (5):
1. A motion (Rule 37).
2. An application (Rule 38).
3. A status hearing (Rule 48.14).
4. At trial, the oral evidence of a witness and the argument.
5. A reference (Rule 55.02).
6. An appeal or a motion for leave to appeal (Rules 61 and 62).
7. A proceeding for judicial review.
8. A pre-trial conference or case conference. O. Reg. 288/99, s. 2; O. Reg. 24100, s. 1; O. Reg. 438/08, s. 3 (1).
Consent
(2) If the parties consent to a telephone or video conference and if the presiding judge or officer permits it, one of the parties shall make the necessary arrangements. O. Reg. 288/99, s. 2.
Order, No Consent
(3) Ifthe parties do not consent, the court may, on motion or on its own initiative, make an order directing a telephone or video conference on such terms as are just. O. Reg. 288/99, s. 2; O. Reg. 438/08, s. 3 (2).
(4) The judge or officer presiding at a proceeding or step in a proceeding may set aside or vary an order made under subrule (3). O. Reg. 288/99, s. 2.
Factors to Consider
(5) In deciding whether to permit or to direct a telephone or video conference, the court shall consider,
(a) the general principle that evidence and argument should be presented orally in open court;
(b) the importance of the evidence to the determination of the issues in the case;
(c) the effect ofthe telephone or video conference on the court's ability to make findings, including determinations about the credibility of witnesses;
55
(d) the importance in the circumstances of the case of observing the demeanour of a witness;
(e) whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;
(f) the balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and ,
(g) any other relevant matter. O. Reg. 288/99, s. 2; O. Reg. 575/07, s. 1.
Arrangements for Conference
(6) Where the court permits or directs a telephone or video conference, the court may direct a party to make the necessary arrangements and to give notice of those arrangements to the other parties and to the court. O. Reg. 288/99, s. 2.
Environmental Review Tribunal Act, 2000 SO 2000, Chapter 26
Schedule F Consolidation Period: From December 15, 2009 to the e-Laws currency date. Last amendment: 2009, c. 33, Sched. 2, s. 29. Joint sittings 3. The Tribunal may sit jointly either within or outside Ontario with any tribunal established under the law of another jurisdiction. 2000, c. 26, Sched. F, s. 3.
No territorial limitation
National Defence Act RSC 1985, c N-5
68. Every person alleged to have committed a service offence may be charged, dealt with and tried under the Code of Service Discipline, either in Canada or outside Canada. R.S., c. N-4, s. 58.
Co-operative reviews
Natural Resources Conservation Board Act RSA 2000, Chapter N-3
21(1) Where the Board is of the opinion that it would be expedient or in the public interest to do so, the Board may conduct a review under this Act or participate in other proceedings in respect of matters relating to the purpose of this Act jointly or in conjunction with another board, commission or other body constituted in Alberta.
(2) Subject to the approval of the Lieutenant Governor in Council, the Board may enter into any agreements it considers desirable with the Government of Canada or an agency of it relating to the reviewable project or with any government of a jurisdiction outside Alberta or an agency of that government, in respect of the effects of the reviewable proj ect in that jurisdiction.
56
(3) Pursuant to an agreement under subsection (2), the Board may hold proceedings jointly or in conjunction with a government or agency referred to in that subsection.
(4) A proceeding referred to in subsection (3) may be held outside Alberta.
Railways Act SNS 1993, c 11
Joint and concurrent sittings 47 (1) The Board, for the purpose of this Act, may authorize a person or body to sit jointly or concurrently with a board established pursuant to an Act of the Parliament of Canada or the legislature of a province of Canada, or a regulation made pursuant thereto.
(2) Where the person or body sits jointly or concurrently with another board pursuant to subsection (1), the person or body may sit outside the Province.
(3) Where the person or body sits jointly with another board pursuant to subsection (1), a decision of the person or body and the other board is and is deemed to be a decision of the person or body.
(4) Where the person or body sits concurrently with another board pursuant to subsection (1), the person or body shall make its own decision at the conclusion of a hearing. 1993, c. 11, s. 47; 2001, c. 12, s. 40.
Co-operative proceedings
Responsible Energy Development Act SA 2012, Chapter R-17.3
18(1) The Regulator may, on its own initiative, and shall, in accordance with any request of the Lieutenant Governor in Council, consider an application or conduct a regulatory appeal, reconsideration or inquiry or participate in other proceedings in respect of matters relating to the purposes of this Act or any other enactment jointly or in conjunction with any agency, board, commission or other body constituted in Alberta, or with a government department.
(2) The Regulator, with the approval of the Lieutenant Governor in Council, may enter into any agreements it considers desirable with the Government of Canada or an agency of it with respect to a matter relating to the purposes of this Act or any other enactment or with any government of a jurisdiction outside Alberta or an agency of that government in respect of the effects of such a matter in that jurisdiction.
(3) Pursuant to an agreement under subsection (2), the Regulator may hold proceedings jointly or in conjunction with the government or agency with which it entered into the agreement.
(4) A proceeding referred to in subsection (3) may be held outside Alberta.
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Securities Act RSA 2000, Chapter S-4
Extra-provincial power of Commission 24(1) Where permitted to do so by another jurisdiction,
(a) the Commission is, with respect to any matter coming under the purview of the Commission by virtue of this Act, empowered to exercise and perform those powers and duties in that other jurisdiction that the Commission can exercise and perfonn in Alberta, and (b) the Executive Director is, with respect to any matter coming under the purview of the Executive Director by virtue of this Act, empowered to exercise and perfonn those powers and duties in that other jurisdiction that the Executive Director can exercise and perform in Alberta.
(2) The Commission, in conjunction with an extra-provincial commission or an official of an extra-provincial commission, may hold hearings outside Alberta with respect to any matter that would be within the jurisdiction of the Commission if the hearing were held in Alberta.
(3) The Executive Director, in conjunction with an extra-provincial commission or an official of an extra-provincial commission, may hold hearings outside Alberta with respect to any matter that would be within the jurisdiction of the Executive Director if the hearing were held in Alberta.
Securities Act SNB 2004, Chapter S-S.S
Power regarding hearings 23(1) When holding a hearing under this Act or the regulations, the Commission or any person to whom the power to hold hearings is delegated by the Commission has the same power to summon and enforce the attendance of witnesses, to compel witnesses to give evidence under oath or in any other manner and to compel witnesses to produce books, records, documents and things or classes of books, records, documents and things as the Court of Queen's Bench has for the trial of civil actions.
23(2) On application to the Court of Queen's Bench by the Commission or by any person to whom the power to hold hearings is delegated, the failure or refusal of a person to attend, to take an oath, to answer questions or to produce books, records, documents and things or classes of books, records, documents and things in the custody, possession or control of the person makes the person liable to be committed for contempt as if in breach of an order or judgment of the Court of Queen's Bench.
23(3) The Commission may hold hearings within or outside New Brunswick.
23( 4) The Commission may hold hearings in conjunction with other bodies empowered by statute to administer and regulate trading in securities, derivatives, and may consult with those bodies during the course of, or in connection with, the hearing. 23(5) The Commission may decide all questions of fact or law arising in the course of a hearing.
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23(6) The Commission may receive in evidence any statement, document, record, information or thing that, in the opinion of the Commission, is relevant to the matter before it, whether or not the statement, document, record, information or thing is given or produced under oath or would be admissible as evidence in a court oflaw. 2007, c.38, s.15; 2008, c.22, s.4; 2013, c.31, s.36; 2013, c.43, sA
Securities Act RSO 1990, Chapter S5
Consolidation Period: From December 10, 2015 to the e-Laws currency date. Last amendment: 2015, c. 38, Sched. 18.
Powers re hearings 3.5 (1) The Commission may hold hearings in or outside Ontario. 1997, c. 10, s. 37.
Joint hearings (2) The Commission may hold hearings in conjunction with other bodies empowered by statute to administer or regulate trading in securities, derivatives or commodities, and may consult with those bodies during the course of, or in connection with, the hearing. 1997, c. 10, s. 37; 2010, c. 26, Sched. 18,s.3.
Powers of one commissioner (3) Despite subsection 3 (11) and subject to subsection (4), any two or more members of the Commission may in writing authorize one member of the Commission to exercise any of the powers and perform any of the duties of the Commission, including the power to conduct contested hearings on the merits, and a decision of the member shall have the same force and effect as if made by the Commission. 2011, c. 9, Sched. 38, s. 1.
Eligibility to sit on hearing (4) No member who exercises a power or performs a duty of the Commission under Part VI, except section 17, in respect of a matter under investigation or examination shall sit on a hearing by the Commission that dea1s with the matter, except with the written consent of the parties to the proceeding. 1997, c. 10, s. 37; 1999, c. 9, s. 194.
Joint reviews, hearings and location
Securities Act SNu 2008, c 12
55. (1) The Superintendent may hold a review or hearing in or outside Nunavut alone or in conjunction with one or more extra-territorial securities regulatory authorities.
Consultation (2) The Superintendent may consult with any member of an extra-territorial securities regulatory authority that is taking part in the joint review or joint hearing.
Joint reviews, hearings and location
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Securities Act SNWT 2008, c 10
55(1) The Superintendent may hold a review or hearing in or outside the province on his or her own, or in conjunction with one or more extra-provincial securities regulatory authorities.
(2) The Superintendent may consult with any member of an extra-provincial securities regulatory authority that is taking part in the joint review or joint hearing.
Securities Act SY 2007, c 16
Joint reviews, hearings and location 55(1) The Superintendent may hold a review or hearing in or outside the province on his or her own, or in conjunction with one or more extra-provincial securities regulatory authorities.
(2) The Superintendent may consult with any member of an extra-provincial securities regulatory authority that is taking part in the joint review or joint hearing. S.Y. 2007, c.l6, s.55
Determination of individual issues
The Class Actions Act SS 2001, c C-12.01
29(1) If the court determines common issues in favour of a class or subclass and determines that there are issues, other than those that may be determined pursuant to section 35, that are applicable only to certain individual members of the class or subclass, the court may:
(a) determine those individual issues in further hearings presided over by the judge who determined the common issues or by another judge of the court;
(b) appoint one or more persons, including one or more independent experts, to conduct an inquiry into those individual issues pursuant to The Queen's Bench Rules and report back to the court; or
(c) with the consent of the parties, direct that those individual issues be determined in any other manner.
(2) The court may give any necessary directions relating to the procedures that must be followed in conducting hearings, inquiries and determinations pursuant to subsection (l).
(3) In giving directions pursuant to subsection (2), the court shall choose the least expensive and most expeditious method of determining the individual issues that is consistent with justice to members of the class or subclass and the parties and, in doing so, the court may:
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(a) dispense with any procedural step that it considers unnecessary; and (b) authorize any special procedural steps, including steps relating to
discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate.
(4) The court shall set a reasonable time within which individual members of the class or subclass may make claims pursuant to this section respecting the individual issues.
(5) A member ofthe class or subclass who fails to make a claim within the time set pursuant to subsection (4) may not make a claim pursuant to this section respecting the issues applicable only to that member except with leave of the court.
(6) The court may grant leave pursuant to subsection (5) if it is satisfied that:
(a) there are apparent grounds for relief; (b) the delay was not caused by any fault of the person seeking the relief; and (c) the defendant would not suffer substantial prejudice if leave were granted.
(7) Unless otherwise ordered by the court making a direction pursuant to clause (1)( c), a determination of issues made in accordance with clause (1)( c) is deemed to be an order of the court.
The Class Proceedings Act CCSM c C130
Determination of individual issues
27(1) If the court determines common issues in favour of a class or subclass and determines that there are issues, other than those that may be determined under section 32, that are applicable only to certain individual members of the class or subclass, the court may
(a) determine those individual issues in further hearings presided over by the judge who determined the common issues or by another judge of the court;
(b) appoint one or more persons, including, without limitation, one or more independent experts, to conduct a reference into those individual issues in accordance with the procedures set out in the Queen's Bench Rules and report back to the court; or
(c) with the consent of the parties, direct that those individual issues be determined in any other manner.
Directions for determination of individual issues
27(2) The court may give directions relating to the procedures to be followed in conducting hearings, references and determinations under subsection (1).
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Considerations in giving directions
27(3) In giving directions under subsection (2), the court must choose the least expensive and most expeditious method of determining the individual issues that is consistent with justice to members of the class or subclass and the parties and, in doing so, the court may
(a) dispense with any procedural step that it considers unnecessary; and
(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of pro of, that it considers appropriate.
Deadline for making claim
27(4) The court must set a reasonable time within which individual members of the class or subclass may make claims under this section in respect ofthe individual issues.
No claim without leave
27(5) A member of the class or subclass who fails to make a claim within the time set under subsection (4) may not later make a claim under this section in respect of the individual issues applicable to that member except with leave of the court.
Considerations re leave
27(6) The court may grant leave under subsection (5) if it is satisfied that
(a) there are apparent grounds for relief;
(b) the delay was not caused by any fault of the person seeking the relief; and
(c) the defendant would not suffer substantial prejudice ifleave were granted.
Deemed order of the court
27(7) Unless the court orders otherwise when making a direction under clause (l)(c), a determination of issues made in accordance with clause (1)( c) is deemed to be an order of the court.
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