Canada: Ontario Court Of Appeal Divided On Interlocutory V. Final Nature Of Order Permitting Superior Court To Sit Outside Province

The Ontario Court of Appeal's March 13, 2015 decision in Parsons v. Ontario added additional complexity to the procedure surrounding multi-jurisdictional class actions. A sharply divided Ontario Court of Appeal (all three judges wrote separately) held that it was an error of law to hold a sitting of the Ontario Superior Court outside of Ontario in the absence of a video link to a courtroom in Ontario. A majority of the Court held that such a video link was necessary to ensure that the Ontario public has access to the proceedings.

But before turning to that issue (discussed further at the Osler Class Action Defence Blog), a (different) majority of the Court first held that an appeal from an order permitting a sitting of the Superior Court outside of the province is likely to be considered a "final" order rather than an interlocutory order, meaning an appeal of that order is taken to the Ontario Court of Appeal rather than the Divisional Court. It remains to be seen whether this holding will be constrained to the circumstances of Parsons – namely, where a court-approved settlement is being supervised. The decision further provided helpful reminders of the circumstances in which a Court will hear a moot appeal, and the standard of review of discretionary decisions of judges in the class action context.

The Facts

Parsons arose from multi-jurisdictional class actions concerning the infection of persons with Hepatitis C through the Canadian blood supply. Courts in Ontario, British Columbia and Québec certified parallel class proceedings, which were settled in 1999. The settlement assigned a supervisory role to the superior courts of all three provinces. It also provided that all three courts were required to issue identical orders for any order to be effective.

In 2012, class counsel proposed that all three supervisory judges sit together in one location to hear submissions on parallel motions. The Attorneys General of Ontario, British Columbia and Québec all objected to the judges sitting outside the territorial boundaries of their province. Class counsel then sought directions from the courts in all three provinces.

In Ontario, former Chief Justice Winkler held that an Ontario Superior Court judge may preside over a hearing that is conducted outside Ontario in circumstances where it promotes the interests of justice (see Parsons v. Canadian Red Cross Society).

Chief Justice Winkler's Decision was "Final"

Even though none of the parties contested the matter, the Court of Appeal first had to be satisfied that it had jurisdiction to hear the appeal. The Ontario Class Proceedings Act does not specify the Court to bring an appeal from an order made on a motion for directions brought pursuant to the terms of a court-approved settlement agreement. As such, the Courts of Justice Act ("CJA") had to be analyzed. Section 6(1) of the CJA grants the Court of Appeal appellate jurisdiction over final orders of the Superior Court unless the appeal lies to the Divisional Court under another Act. The Divisional Court, on the other hand, has jurisdiction over interlocutory appeals.

Justice LaForme (with whom Justice Lauwers agreed on this point) held that the order under appeal was "final". He held that the fact that the underlying class actions had been resolved by the settlement agreement required that he take a "somewhat modified" approach to the classic test for distinguishing between a final or interlocutory order. He stated that class counsel's request was akin to an application under Rule 14.05(3)(d) of the Rules of Civil Procedure, to determine legal rights. In his view, Chief Justice Winkler:

[51] ... disposed of the motion on the merits by granting declaratory relief in a form that was consistent with the moving party's position. Thus, in my view, the order is final for the same reason that an order resolving a Rule 14 application is final even though another, quite possibly larger, issue between the parties remains to be determined.

Justice LaForme was nonetheless cautious to note that his decision was narrow:

[53] It is important to note that this decision does not stand for the proposition that any appeal from an order of a supervisory judge under a national class action settlement agreement will come directly to this court. The order's final or interlocutory character will turn on the specific order of the supervisory judge acting under a settlement agreement within the discrete context of post-settlement litigation.

Justice Juriansz disagreed, holding that the order under appeal was interlocutory. He turned to Hendrickson v. Kallio, the leading precedent for determining whether an order is final or interlocutory. Hendrickson holds that an interlocutory order "does not determine the real matter in dispute between the is interlocutory if the merits of the case remain to be determined." Justice Juriansz therefore concluded that Chief Justice Winkler had made an interlocutory order.

Justice Juriansz distinguished case law establishing that orders dismissing challenges to the Superior Court's jurisdiction over a proceeding based on an alleged lack of jurisdiction are final orders. In those cases, the order has the effect of depriving a party of a substantive defence while the "order in this case does not affect any claims or defences of the parties and has no effect on the merits of any litigation whatsoever" (para. 195).

Justice Juriansz rejected Justice LaForme's "different and novel" approach to this question in circumstances where the action has been settled and no claims or defences remain to the tried. He specifically rejected the analogy to an application seeking the determination of rights that depend on the interpretation of a statute or regulation. Notably, the motion for directions before Chief Justice Winkler was not a freestanding application but was connected to a specific and pending dispute. The connection to that dispute permeated his decision. In sum:

[204] the "real matter in dispute between the parties" under the Hendrickson test was whether the court should extend the deadline for filing first claims. The decision on the motion for directions left the merits of that matter to be determined. The decision simply determined the issue of where the court could sit to hear the real matter in dispute.

In any event, Justice Juriansz observed that the issue on the motion for directions could not be heard in a Rule 14.05(3)(d) application (the basis for Justice LaForme's application analogy). This distinguished the case from Fontaine v. Canada, which involved an appeal from a motion related to the implementation of a class action settlement.

Ultimately, Justice Juriansz found no reason to depart from the Hendrickson test because the action has been resolved. Rather, "the focus of the inquiry will simply shift to the real issue in dispute between the parties and to whether the order under appeal finally determined that issue. ... I fear that abandoning the traditional test in favour of a modified approach will lead to greater uncertainty in an already unwieldy area of jurisprudence."

Given that he was dissenting on this issue, however, Justice Juriansz proceeded to consider the merits of the issues.


The appeal was technically "moot" as the underlying motions had all been heard and decided. In the circumstances, however, the Court of Appeal unanimously held that it was appropriate to decide the appeal as it addressed an issue of importance that was likely to arise again and there was a social cost to leaving it unresolved.

In Justice LaForme's view:

[56] ... This case, in my view, raises an issue that should be resolved because of its national importance and the continuing social cost of leaving it unsettled: see Borowski v. Canada (Attorney General) [...]. Specifically, it is important to resolve whether a superior court judge has the option of sitting outside his or her home province to facilitate the implementation and enforcement of a national class settlement. The failure to resolve this important question may hinder the administration of national class action settlements such as this one, which are an important vehicle for promoting access to justice, judicial economy and behavior modification.

The Merits

On the merits, Justice Lauwers agreed with Justice Juriansz that the "open court principle" and s. 135(1) of Ontario's Courts of Justice Act require a video link to an Ontario courtroom if the Superior Court is to sit outside of Ontario.

Justice LaForme disagreed, and would have upheld Chief Justice Winkler's order in its entirety. He emphasized that Chief Justice Winkler's decision in this respect was owed deference by the Court of Appeal:

[154] ... "[A discretionary decision in a class proceeding] may only be set aside if it is based 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": 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, 115 O.R. (3d) 653, at para. 40."


Litigants should be cognizant of appellate jurisdiction in Ontario class proceedings, noting that this remains a still uncertain area of the law in some respects. Whether the Court of Appeal or Divisional Court will have jurisdiction over a particular matter will very much depend on the facts of a particular case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions