The Ontario Court of Appeal, in a split decision, has held that a
judge of Ontario's Superior Court of Justice, acting as a
supervisory judge under a national class action settlement
agreement, can participate in a joint hearing with non-Ontario
judges either inside or outside Ontario. The ultimate decision
accords with the British Columbia Court of Appeal's ruling on the
same issue. Given the national issues raised by these appeals and
the partial dissent, these cases may be headed to the Supreme Court
In the late 1980s, people infected with the Hepatitis C virus by
the Canadian blood supply initiated class actions in Ontario,
British Columbia and Québec. In 1999, the parties settled,
which established a $1.118 billion fund for claimants across
Canada. The governments of all of the provinces and territories
other than Québec and British Columbia attorned to the
jurisdiction of the Ontario court. Class members who are residents
of provinces and territories other than British Columbia and
Québec are members of the Ontario class and fall under the
jurisdiction of the Ontario court.
The Settlement Agreement assigns a supervisory role to the
superior courts in each of British Columbia, Ontario and
Québec. Further, any court's order will take effect only
once the other two courts make materially identical orders and
settlement itself would not take effect until each of the courts
had approved it in materially identical terms.
To facilitate this judicial cooperation and to resolve an issue
regarding the late filing of claims to the settlement fund, class
counsel proposed that the three supervisory judges sit together in
one courtroom to hear submissions (the proposed location was
Edmonton, where all three judges would be attending a meeting).
Ontario objected. The motion judge (Chief Justice Warren Winkler
(as he was then), sitting as a Superior Court judge) held there was
no legal impediment to the supervisory judges sitting together to
hear the motions either inside or outside Ontario.
The supervisory judges in Québec and British Columbia
agreed. The British Columbia Attorney General appealed. In the
interim, the motions were heard separately. The judges reached
three conflicting conclusions.
Justice Juriansz would have dismissed the appeal because the
appeal was interlocutory. Justice LaForme would have dismissed the
appeal on its merits altogether. He agreed with Justices Juriansz
and Lauwers there are "no constitutional, common law or
statutory barriers to employing the inherent powers of the court to
conduct an out-of-province hearing...." Justice Lauwers,
though, agreed with Justice Juriansz that the motion judge erred in
concluding that a video link to a courtroom in Ontario is not
required when a hearing is conducted from outside the Province.
Pending any further appeal, the decision is likely to affect
other national class actions. Absent a national protocol, the
decision is likely to be used by parties to argue for
extra-provincial hearings, albeit with a video link to preserve the
"open courts" principal.
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