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Ruling shows courts struggling with handling national class actions

|Written By Glenn Kauth

Canadian courts continue to struggle with how to deal with national class actions, as demonstrated in an Ontario Court of Appeal decision on whether an Ontario judge could sit together with colleagues from other provinces to consider the Hepatitis C case.

Barry Glaspell says the big issue with national class actions is often how to implement them.

“There are serious difficulties with many national class actions that we have to deal with, and this is one example of it,” says Barry Glaspell, a class actions lawyer at Borden Ladner Gervais LLP.

Glaspell was speaking of Parsons v. Ontario, a decision released Friday that included two partial dissents from Justice Harry LaForme’s decision in the matter. The judges were ruling on former Ontario chief justice Warren Winkler’s decision in 2013 in which, sitting as a Superior Court judge, he held that the Ontario court’s “inherent jurisdiction to fully control its own process” permitted it to convene outside the province.

 In this case, the proceedings were to take place in Edmonton to hear parallel motions arising under the pan-Canadian settlement agreement in the Hepatitis C case. Superior court judges from British Columbia, Ontario, and Quebec are supervising the implementation and enforcement of the settlement.

Ontario’s attorney general raised a number of arguments in its appeal. It argued the Constitution, the common law, and legislation prevent judges from conducting hearings outside their home province. It also suggested the only way to get around the issue was by using a video link.

On the constitutional issue, the province argued the federal nature of Canada’s court system envisions parallel and distinct court systems operating within their respective jurisdictions; the question of whether judges can hold hearings outside Ontario is a matter for the legislature and not the courts; and conducting a hearing elsewhere infringes the sovereignty of the other province.

In deciding the issue, LaForme found each judge would conduct a separate hearing to decide the matter in question. He noted the idea of a single location was to enhance co-operation between the three judges who would nevertheless issue orders from their home provinces.

“In my view, such a process respects the distinct nature of the courts of each province while stimulating the cooperation required to effectively administer the Settlement Agreement,” wrote LaForme.

LaForme also found Ontario had effectively conceded that out-of-province hearings aren’t presumptively unconstitutional as it recognized that the legislature could authorize them by statute.

“If Ontario has the legislative authority to permit out-of-province hearings, there can be nothing presumptively unconstitutional about them,” he wrote.

LaForme also rejected the province’s argument about infringing Alberta’s sovereignty.

“In my view, the motion that was to have been heard in Alberta would not have infringed Alberta’s sovereignty. It is common ground that the supervisory judges had personal and subject matter jurisdiction in this case. The parallel motions were paper motions; no witnesses were to be called. The exercise of coercive powers was not contemplated. And the motions were to be heard in the context of a pan-Canadian Settlement Agreement approved by each and every jurisdiction in Canada, including Alberta. In these circumstances, I can see no infringement of Alberta’s sovereignty.”

Another key issue in the case was the open-court principle as the Ontario government argued it precludes an Ontario judge from conducting a hearing outside the province. On this issue, LaForme found the principle of open courts isn’t absolute as it doesn’t guarantee a right to be physically present in the courtroom. And, he noted, the Edmonton hearings would presumably have taken place in open court and the media would still have been able to report on them.

“The driving factor behind the proximity between open justice and freedom of expression would be preserved,” wrote LaForme.

Interestingly, the decision in this case was moot in light of legal developments in British Columbia. While the supervising judges in British Columbia and Quebec agreed with the Ontario decision to convene in another province, the B.C. Court of Appeal allowed that province’s appeal on the issue. In the end, the courts heard separate motions on the claims extension matter before them. They reached three conflicting decisions, according to LaForme. But the Ontario appeal court went ahead and decided the jurisdictional question as the parties argued the issue was likely to arise again.

Glaspell notes the B.C. appeal ruling is subject to a leave application at the Supreme Court of Canada.

But adding to the confusion is the fact there were two partial dissents from LaForme’s findings. Justice Russell Juriansz found Winkler had erred in finding a Superior Court judge in this case could sit outside Ontario without the necessity of a video link to a courtroom in Ontario.

“I would conclude that the Ontario supervising judge while physically located outside the province has the jurisdiction and discretion to conduct the motion remotely and concurrently with his or her judicial supervisory counterparts,” wrote Juriansz, who emphasized the necessity of ensuring the open-courts principle but found technological alternatives could accommodate the requirement that the Ontario public be able to attend the hearing in an Ontario courtroom.

Further partial dissent came from Justice Peter Lauwers, who agreed with LaForme in all respects except on the question of requiring a video link.

“In my view, s. 135 of the Courts of Justice Act requires a ‘video pipe’ between the room or rooms outside Ontario in which the hearing is held and a reasonably accessible Ontario courtroom,” wrote Lauwers.

“Only then can the hearing be said to be open to members of the Ontario public who wish to attend. Therefore, in my view, s. 135 is an express statutory limitation on the court’s inherent jurisdiction to hold a hearing outside Ontario.”

For Glaspell, having a video link is key. “I actually think a video link is needed,” he says, citing the concern for open courts.

Glaspell also notes that underlying the issue in such cases is the question of whether judges from different provinces can confer with each in the absence of counsel.

“The core issue is whether judges speak to each other before they make their ruling without counsel being present,” he says, noting it’s an issue counsel would seek instructions on from their clients.

Glaspell also says while the legal system has dealt with many national class actions, the difficulty, as this case shows, is often how to implement them.

“This case has been settled. This is a case where is should not have been a big deal, frankly, and what justice Winkler said made sense,” he says.


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