Parsons et al. v. Her Majesty the Queen in Right of Ontario et al.; Her Majesty the Queen in Right of Alberta et al., Intervenors Kreppner et al. v. Her Majesty the Queen in Right of Ontario et al.; Her Majesty the Queen in Right of Alberta et al., Intervenors

[Indexed as: Parsons v. Ontario]

Ontario Reports

Court of Appeal for Ontario,

Juriansz, LaForme and Lauwers JJ.A.

March 13, 2015

125 O.R. (3d) 168 | 2015 ONCA 158

Case Summary

Appeal — Final or interlocutory order — Ontario motion judge supervising implementation of national class action settlement agreement along with judges from British Columbia and Quebec — Motion judge [page169] ruling on motion for directions that he could sit outside Ontario with other supervisory judges to hear motions to permit late filing of claims to settlement fund — That decision final — Court of Appeal having jurisdiction to hear Ontario's appeal from decision.

Appeal — Mootness — Ontario motion judge supervising implementation of national class action settlement agreement along with judges from British Columbia and Quebec — Motion judge ruling on motion for directions that he could sit outside Ontario with other supervisory judges to hear motions to permit late filing of claims to settlement fund — Ontario appealing — Claim extension motions heard and decided before appeal heard — Court of Appeal hearing appeal despite mootness — Jurisdictional issue likely to arise again in this and other pan-Canadian class proceedings.

Civil procedure — Class proceedings — Settlement — Implementation — Ontario judge supervising implementation of national class action settlement agreement along with judges from British Columbia and Quebec — Ontario judge having jurisdiction to conduct hearing under settlement agreement outside Ontario but open court principle requiring video link between hearing room and reasonably accessible Ontario courtroom.

Courts — Open court principle — Ontario judge supervising implementation of national class action settlement agreement along with judges from British Columbia and Quebec — Ontario judge having jurisdiction to conduct hearing under settlement agreement outside Ontario but open court principle requiring video link between hearing room and reasonably accessible Ontario courtroom.

The motion judge, along with judges from British Columbia and Quebec, were supervising the implementation of a national class action settlement agreement. On a motion for directions, the motion judge ruled that he had the discretionary authority to sit outside Ontario with the other supervisory judges to hear motions to permit the late filing of claims to the settlement fund (the "claims extension motions"). He rejected Ontario's submission that the open court principle demanded that the hearing be held in Ontario, and ruled that a video-conference link to an Ontario courtroom was not necessary. Ontario appealed. Before the appeal was heard, the claims extension motions were heard and decided.

Held, the appeal should be allowed.

Per LaForme J.A. (dissenting in part): The Court of Appeal had jurisdiction under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to hear the appeal. The essential character of class counsel's request for directions was akin to an application under rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The motion for directions was not merely a step in the underlying claims extension motion. Rather, the motion required a determination generally as to whether the supervisory judges could sit together to hear concurrent motions arising under the settlement agreement. The motion judge's order disposed of the motion on the merits by granting declaratory relief in a form that was consistent with the moving party's position. Thus, the order was final.

It was appropriate to hear the appeal despite its mootness as the issue was likely to arise again in connection with the administration of the settlement agreement and other pan-Canadian class proceedings. [page170]

There was no constitutional, common law or statutory impediment to the motion judge sitting outside Ontario. The motion judge's order was not at odds with the provisions of the Constitution Act, 1867 which contemplate a federal system with parallel, co-operating but distinct courts. Each supervisory judge would conduct a separate hearing to decide the claims extension motion brought in the judge's home jurisdiction, but the motions would be conducted in a single location to enhance co-operation between the judges and facilitate implementation and enforcement of the settlement agreement. The orders arising from the claims extension motions would issue from the home provinces of the supervisory judges. The fact that there is no legislation which specifically allows superior court judges to hold hearings in class proceedings outside Ontario did not tie the court's hands. The motion judge's order did not amount to "major legislative reform" that infringed the legislature's role. Historical English common law which prohibited English courts from sitting outside England was not determinative of the jurisdictional issue in this case. Section 11(2) of the Courts of Justice Act, which provides that the Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario, is inclusive, not exclusive. It does not say that the Superior Court has only the jurisdiction historically exercised by the courts of England and Ontario. There was nothing in s. 15(1) of the Courts of Justice Act which precluded the motion judge's order.

The open court principle does not preclude an Ontario judge from conducting a hearing outside Ontario. 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. The open court principle does not dictate the geographic location in which a hearing is held. Nor does the wording of s. 135 of the Courts of Justice Act dictate that to be "open to the public", the hearing must be located within Ontario. While the Ontario public may find it more difficult to access an out-of-province hearing, a hearing held in an open courtroom elsewhere in Canada is no less open to the Ontario public. The motion judge did not err in ruling that a video-conference link to an Ontario courtroom was not required.

There was no reason to interfere with the motion judge's discretionary decision that it was appropriate in the circumstances to sit outside of Ontario to resolve the claims extension motions.

Per Juriansz J.A. (dissenting in part): The Court of Appeal lacked jurisdiction to determine the appeal because the motion judge's order was interlocutory. The motion for directions was not akin to a free-standing application. Rather, it was an interlocutory motion and the claims extension motion was the underlying proceeding.

The reasons of LaForme J.A. on the issue of mootness were agreed with.

The motion judge had the jurisdiction to sit outside Ontario to hear the claims extension motions, but only if there was a video-conference link to an Ontario courtroom. The obvious intent of s. 135 of the Courts of Justice Act is to guarantee the Ontario public the prima facie right to attend all court hearings of Ontario courts. The Act does not contemplate that the Ontario public must travel to another province to exercise the right to attend the hearing. For the statutory right to be meaningful, it is necessary that the Ontario public be able to attend the hearing at an Ontario courtroom. However, there is nothing to prevent a judge, as well as counsel or witnesses, from appearing in the courtroom remotely. [page171]

Per Lauwers J.A.: The reasons of LaForme J.A. are agreed with on all issues except the application of the open court principle. Section 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. Section 135 is an express statutory limitation on the court's inherent jurisdiction to hold a hearing outside Ontario.

Endean v. Canadian Red Cross Society, [2014] B.C.J. No. 254, 2014 BCCA 61, 49 C.P.C. (7th) 316, [2014] 5 W.W.R. 481, 352 B.C.A.C. 7, 59 B.C.LR. (5th) 113, 601 W.A.C. 7, 237 A.C.W.S. (3d) 396, revg [2013] B.C.J. No. 1304, 2013 BCSC 1074, 2013 CarswellBC 1828; Ewachniuk v. Law Society of British Columbia, 1998 CanLII 6469 (BC CA), [1998] B.C.J. No. 372, 156 D.L.R. (4th) 1, [1998] 7 W.W.R. 637, 104 B.C.A.C. 117, 46 B.C.L.R. (3d) 203, 77 A.C.W.S. (3d) 1086 (C.A.); Fontaine v. Canada (Attorney General), [2012] B.C.J. No. 1154, 2012 BCSC 839, [2012] B.C.W.L.D. 8453; Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380, [1932] 4 D.L.R. 580 (C.A.); Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135, 76 D.L.R. (4th) 256, 122 N.R. 81, [1991] 2 W.W.R. 217, J.E. 91-123, 52 B.C.L.R. (2d) 160, 46 C.P.C. (2d) 1, 15 R.P.R. (2d) 1, 24 A.C.W.S. (3d) 478; Ontario v. Criminal Lawyers' Assn. of Ontario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43, 363 D.L.R. (4th) 17, 300 C.C.C. (3d) 137, 291 C.R.R. (2d) 265, 447 N.R. 111, 308 O.A.C. 347, 2013EXP-2543, J.E. 2013-1364, EYB 2013-2250804 C.R. (7th) 1, 108 W.C.B. (2d) 211, consd

Other cases referred to

1250264 Ontario Inc. v. Pet Valu Canada Inc. (2013), 115 O.R. (3d) 653, [2013] O.J. No. 2012, 2013 ONCA 279, 362 D.L.R. (4th) 88, 34 C.P.C. (7th) 53, 305 O.A.C. 329, 226 A.C.W.S. (3d) 651; Abbott v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99, [2002] O.J. No. 4058, 165 O.A.C. 272, 26 C.P.C. (5th) 273, 117 A.C.W.S. (3d) 521 (C.A.); Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 CanLII 164 (SCC), [1976] 2 S.C.R. 475, [1975] S.C.J. No. 84, 57 D.L.R. (3d) 1, 5 N.R. 515, [1976] 1 W.W.R. 1, 20 C.B.R. (N.S.) 240; Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, 57 D.L.R. (4th) 231, 92 N.R. 110, [1989] 3 W.W.R. 97, J.E. 89-499, 75 Sask. R. 82, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105, 38 C.R.R. 232, 7 W.C.B. (2d) 61; Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97, [1994] O.J. No. 1592, 117 D.L.R. (4th) 373, 73 O.A.C. 298, 34 C.P.C. (3d) 76, 50 A.C.W.S. (3d) 533 (C.A.); Canada Post Corp. v. Lépine, [2009] 1 S.C.R. 549, [2009] S.C.J. No. 16, 2009 SCC 16, 387 N.R. 91, 304 D.L.R. (4th) 539, 67 C.P.C. (6th) 201, EYB 2009-156806, J.E. 2009-620; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38, 139 D.L.R. (4th) 385, 203 N.R. 169, 182 N.B.R. (2d) 81, 110 C.C.C. (3d) 193, 2 C.R. (5th) 1, 39 C.R.R. (2d) 189, 66 A.C.W.S. (3d) 444, 32 W.C.B. (2d) 273; Carmen Alfano Family Trust (Trustee of) v. Piersanti, [2012] O.J. No. 2847, 2012 ONCA 442; Edmonton Journal (The) v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, [1989] S.C.J. No. 124, 64 D.L.R. (4th) 577, 102 N.R. 321, [1990] 1 W.W.R. 577, J.E. 90-47, 71 Alta. L.R. (2d) 273, 103 A.R. 321, 41 C.P.C. (2d) 109, 45 C.R.R. 1, 18 A.C.W.S. (3d) 894; Endean v. Canadian Red Cross Society, [2014] B.C.J. No. 651, 2014 BCSC 621; Glover v. M.N.R. ("Glover No. 1"), 1981 CanLII 64 (SCC), [1981] 2 S.C.R. 561, [1981] S.C.J. No. 97, 130 D.L.R. (3d) 383, 43 N.R. 271, [1982] C.T.C. 29, 82 D.T.C. 6035, 25 R.F.L. (2d) 335, 12 A.C.W.S. (2d) 170, affg (1980), 1980 CanLII 63 (ON CA), 29 O.R. (2d) 392, [1980] O.J. No. 3676, 113 D.L.R. (3d) 161, 43 N.R. 273, 16 C.P.C. 77, [1980] C.T.C. 531, 80 D.T.C. 6262, 18 R.F.L. (2d) 116, 3 A.C.W.S. (2d) 434 (C.A.); Honhon c. Canada (Procureur général), [2013] J.Q. no 6643, 2013 QCCS 2782, 2013EXP-2436, J.E. 2013-1315, 2013 CarswellQue 6102 (Sup. Ct.); Honhon v. Canada (Procureur général), [2014] Q.J. No. 4357, 2014 QCCS 2032, 2014EXP-1753, J.E. 2014-991, EYB 2014-237076 (Sup. Ct.); [page172] Locking v. Armtec Infrastructure Inc., [2012] O.J. No. 5324, 2012 ONCA 774, 299 O.A.C. 20, 30 C.P.C. (7th) 1, 223 A.C.W.S. (3d) 6; MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, [1995] S.C.J. No. 101, 130 D.L.R. (4th) 385, 191 N.R. 260, [1996] 2 W.W.R. 1, J.E. 96-63, 68 B.C.A.C. 161, 14 B.C.LR. (3d) 122, 103 C.C.C. (3d) 225, 44 C.R. (4th) 277, 33 C.R.R. (2d) 123, 59 A.C.W.S. (3d) 199, 29 W.C.B. (2d) 160; Manos Foods International Inc. v. Coca-Cola Ltd., 1999 CanLII 3022 (ON CA), [1999] O.J. No. 3623, 180 D.L.R. (4th) 309, 125 O.A.C. 66, 40 C.P.C. (4th) 113, 2 C.P.R. (4th) 283, 91 A.C.W.S. (3d) 398 (C.A.); M.J. Jones Inc. v. Kingsway General Insurance Co. (2003), 2003 CanLII 37356 (ON CA), 68 O.R. (3d) 131, [2003] O.J. No. 4388, 233 D.L.R. (4th) 285, 178 O.A.C. 351, 41 C.P.C. (5th) 52, 127 A.C.W.S. (3d) 9 (C.A.) [appeal to S.C.C. discontinued December 23, 2004]; Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253, [2007] S.C.J. No. 43, 2007 SCC 43, 285 D.L.R. (4th) 193, 368 N.R. 112, [2008] 1 W.W.R. 223, J.E. 2007-1909, 247 B.C.A.C. 1, 73 B.C.L.R. (4th) 34, 224 C.C.C. (3d) 1, 51 C.R. (6th) 262, 162 C.R.R. (2d) 104, EYB 2007-124673, 75 W.C.B. (2d) 103; Nortel Networks Corp. (Re), [2011] O.J. No. 2783, 2011 ONSC 3805 (S.C.J.); Palkowski v. Ivancic (2009), 100 O.R. (3d) 89, [2009] O.J. No. 4103, 2009 ONCA 705, 258 O.A.C. 55, 312 D.L.R. (4th) 329, 76 C.P.C. (6th) 204, 84 R.P.R. (4th) 226, 181 A.C.W.S. (3d) 261; Parsons v. Canadian Red Cross Society, [2013] O.J. No. 2343, 2013 ONSC 3053, 43 C.P.C. (7th) 412, 363 D.L.R. (4th) 352, 228 A.C.W.S. (3d) 33 (S.C.J.); Parsons v. Canadian Red Cross Society, 2014 ONSC 7788 (S.C.J.); R. v. Caron, [2011] 1 S.C.R. 78, [2011] S.C.J. No. 5, 2011 SCC 5, 329 D.L.R. (4th) 50, 411 N.R. 89, 2011EXP-427, 97 C.P.C. (6th) 205, 14 Admin L.R. (5th) 30, 37 Alta. L.R. (5th) 19, 499 A.R. 309, 264 C.C.C. (3d) 320, J.E. 2011-232, EYB 2011-185762, [2011] 4 W.W.R. 1, 93 W.C.B. (2d) 265; R. v. Keyn (1876), 2 Ex. D. 63; R. v. Pilarinos, [2001] B.C.J. No. 2540, 2001 BCSC 1690, [2001] B.C.T.C. 1690, 52 W.C.B. (2d) 161; Reference re Ownership of Off Shore Mineral Rights (British Columbia), 1967 CanLII 71 (SCC), [1967] S.C.R. 792, [1967] S.C.J. No. 70, 65 D.L.R. (2d) 353, 62 W.W.R. 21; Reference re Young Offenders Act (P.E.I.), 1991 CanLII 11713 (SCC), [1991] 1 S.C.R. 252, [1990] S.C.J. No. 60, 77 D.L.R. (4th) 492, 121 N.R. 81, J.E. 91-242, 89 Nfld. & P.E.I.R. 91, 62 C.C.C. (3d) 385, 12 W.C.B. (2d) 215; Smith Estate v. National Money Mart Co. (2008), 92 O.R. (3d) 641, [2008] O.J. No. 4327, 2008 ONCA 746, 61 C.P.C. (6th) 72, 243 O.A.C. 173, 303 D.L.R. (4th) 175, 170 A.C.W.S. (3d) 452 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 535]; Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, 240 D.L.R. (4th) 147, 322 N.R. 161, [2005] 2 W.W.R. 671, 199 B.C.A.C. 1, 33 B.C.L.R. (4th) 261, 184 C.C.C. (3d) 515, 21 C.R. (6th) 142, 120 C.R.R. (2d) 203, 61 W.C.B. (2d) 216; Waldman v. Thomson Reuters Canada Ltd., [2015] O.J. No. 395, 2015 ONCA 53; Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63, 2001 SCC 46, 201 D.L.R. (4th) 385, 272 N.R. 135, [2002] 1 W.W.R. 1, J.E. 2001-1430, 94 Alta. L.R. (3d) 1, 286 A.R. 201, 8 C.P.C. (5th) 1, REJB 2001-25017, 106 A.C.W.S. (3d) 397

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 2(b)

Class Proceedings Act, 1992, S.O. 192, c. 6 [as am.], s. 12

Constitution Act, 1867, Part VI, ss. 91, 92, (14), 96, 97, 98

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1) (b), 11(2), 15(1), 19(1)(b), 135, (1)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(2), 1.08, (2), (3), (6), 14, 14.05(3)(d)

Authorities referred to

Jacob, I.H., "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Probs. 23

Mason, Keith, "The Inherent Jurisdiction of the Court" (1983), 57 Austl. L.J. 449 [page173]

APPEAL from the order of Winkler C.J., sitting as a judge of the Superior Court of Justice, [2013] O.J. No. 2343, 2013 ONSC 3053 (S.C.J.) that he had jurisdiction to hear the motion outside Ontario without a video link to an Ontario courtroom.

Malliha Wilson, Michele Smith and Joshua Hunter, for appellant Attorney General of Ontario.

Paul Vickery and Matthew Sullivan, for respondent Attorney General of Canada.

John E. Callaghan and Alex Zavaglia, for respondent Fund Counsel for Ontario.

Paul J. Pape and Shantona Chaudhury, for respondent David Tull.

Caroline Zayid and H. Michael Rosenberg, for intervenors.

LAFORME J.A. (dissenting in part): —

I. Introduction

[1]

Introduction

Class actions are a vitally important component of our justice system. Because class actions allow a large number of individual claims to proceed as one representative action, they facilitate access to justice, judicial economy and behaviour modification: see Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63, 2001 SCC 46, at paras. 26-29. In recognition of their importance, some provinces have passed class actions legislation -- for example, Ontario's Class Proceedings Act, 1992, S.O. 1992, c. 6. Where a province does not have such legislation, the Supreme Court of Canada has recognized the right to bring a class action notwithstanding the absence of legislation: see Western Canadian Shopping Centres, at para. 34.

2Since 1999, the superior courts of Ontario, Quebec and British Columbia have managed the settlement of hepatitis C class actions brought against the Canadian Red Cross Society and the federal, provincial and territorial governments. The class actions arose out of a national tragedy caused by the distribution of tainted blood. Canadians coast to coast were affected.

3Ultimately, the federal, provincial and territorial governments entered into a pan-Canadian settlement with the plaintiffs (the "settlement agreement"). The settlement agreement was designed to treat all Canadians within its scope fairly, consistently and in accordance with the settlement terms. To that end, superior court judges from British Columbia, Ontario and Quebec have supervised the implementation and enforcement of the settlement agreement. [page174]

4In 2009, the Supreme Court of Canada in Canada Post Corp. v. Lépine, [2009] 1 S.C.R. 549, [2009] S.C.J. No. 16, 2009 SCC 16, 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.

5Provincial 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".

6In this case, that is exactly what Ontario's supervisory judge did on a motion for directions (the "motion judge"). Class counsel proposed that the three supervisory judges sit together in Edmonton, Alberta to hear parallel motions arising under the settlement agreement. The motion judge concluded that Ontario's supervisory judge has the discretionary authority to conduct a hearing under the settlement agreement outside the boundaries of Ontario. He also concluded that it was appropriate to exercise that discretionary authority in the circumstances of the case before him: Parsons v. Canadian Red Cross Society, [2013] O.J. No. 2343, 2013 ONSC 3053, 363 D.L.R. (4th) 352 (S.C.J.).

7The Attorney General of Ontario ("Ontario") appeals from that decision. On appeal, it raises a new objection, arguing that the other two supervisory judges from British Columbia and Quebec may not sit in Ontario.

8Ontario does not dispute that the supervisory judges have personal jurisdiction over the parties to the settlement agreement and subject matter jurisdiction over matters arising under the settlement agreement. Ontario only objects to the physical location of the hearing.

9Thus, the fundamental issue on this appeal is whether the motion judge erred in concluding that a judge of Ontario's Superior Court of Justice, acting as a supervisory judge under the settlement agreement, could participate in a joint hearing with the other two supervisory judges either inside or outside of Ontario by virtue of the inherent jurisdiction of a superior court to control its own process.

10I see no reason to interfere with the motion judge's decision. Accordingly, I would dismiss the appeal. [page175]

II. Background

A. Settlement agreement

[11]

Background

People infected with the hepatitis C virus by the Canadian blood supply between 1986 and 1990 initiated class proceedings in Ontario, British Columbia and Quebec. In each of the three class proceedings, the defendants included the Attorney General of Canada ("Canada") and the Attorney General of each of the three provinces.

12In 1999, the parties reached a pan-Canadian settlement. To facilitate the national settlement, the governments of all provinces and territories other than Quebec and British Columbia took the unusual step of attorning to the jurisdiction of the Ontario courts. Accordingly, class members who are residents of provinces and territories other than British Columbia and Quebec are members of the Ontario class and fall under the jurisdiction of the Ontario court.

13The settlement agreement was approved by each of Ontario's, British Columbia's and Quebec's superior courts. It provided for the establishment of a $1.118 billion fund to which eligible claimants from across Canada could apply to receive compensation.

14As noted, the settlement agreement assigned a supervisory role to the Superior Court of Justice for Ontario, the Supreme Court of British Columbia and the Superior Court of Quebec. Article 10.01(1) of the settlement agreement provides, in part:

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.

15Under the settlement agreement, each of the three courts is to exercise its independent supervisory power over the litigation settlement within its own jurisdiction while recognizing that the broader scope of the pan-Canadian settlement requires a collective judicial oversight.

16Article 10.01(2) of the settlement agreement provides that any court's order will take effect only once the other two courts make materially identical orders. Similarly, art. 12.01 provides that the settlement itself would not take effect until each of the courts had approved it in materially identical terms. Thus, the settlement agreement anticipates close judicial co-operation. [page176]

B. Motion judge's decision

17I now turn to the decision under appeal.

18The motion judge's decision arises from a motion for directions. It was brought to resolve an issue stemming from previous motions filed by class counsel in Ontario, British Columbia and Quebec to permit the late filing of claims to the settlement fund (the "claims extension motions"). To facilitate a consensus among the supervisory judges, class counsel proposed that the judges sit together in one courtroom to hear submissions and resolve the claims extension motions. The motions were to be heard jointly in Edmonton, Alberta, since all of the supervisory judges were scheduled to be there for a meeting of the Canadian Judicial Council.

19Ontario objected, arguing that Ontario's supervisory judge could not sit outside the territorial boundaries of the province. Separate motions for directions were brought in each jurisdiction to resolve this jurisdictional objection (the "jurisdictional issue"). The claims extension issue was initially set aside until after the jurisdictional issue was decided.

20On the jurisdictional issue, the motion judge concluded that Ontario's supervisory judge could sit outside Ontario with his supervisory colleagues to hear the claims extension motions. He held that "[w]here 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": Parsons, at para. 56.

21Although the motion judge acknowledged that there were "historical common law restrictions preventing English courts from sitting outside England going back to the Magna Carta", he found that those restrictions do not apply here because they "fly in the face of the obvious intention of the Constitution to create a single country" and because they are "not suited to modern realities of increasingly complex litigation involving parties and subject matters that transcend provincial borders": Parsons, at paras. 22-25. He distinguished between an English court sitting outside England and a provincial superior court sitting elsewhere in Canada.

22The motion judge concluded that there was no "constitutional, statutory or binding common law authority for the position that a provincial superior court that otherwise has jurisdiction over the subject matter and the parties to the proceeding is precluded from conducting a hearing in a location outside the province": Parsons, at para. 32. Rather, he found that [page177] "common law authority . . . supports a conclusion that provincial superior courts have discretion to sit outside their home province as a function of their inherent jurisdiction to control their own process": Parsons, at para. 32.

23In the circumstances of this case -- involving a national class action that would greatly benefit from inter-provincial judicial co-operation -- the motion judge held it was in the interests of justice for the supervisory judges to sit together to hear the claims extension motions inside or outside of Ontario. A joint sitting, he found, would allow the supervisory judges to receive the same submissions, confer, reach consistent findings in accordance with the settlement agreement's requirements and avoid costly duplication. The alternative of each supervisory judge sitting in his home province linked to the others by video would, in his view, be disruptive and inadequate.

24The motion judge rejected Ontario's submission that the open court principle demands that the hearing be held in Ontario. He noted that class counsel did not request that the hearing be transmitted by way of video link to an Ontario courtroom: Parsons, at para. 51.

25The motion judge ultimately ordered the following:

(1) The judge of the Ontario Superior Court of Justice supervising the 1986-1990 hepatitis C settlement agreement has the discretion to sit with his or her judicial supervisory counterparts in a location inside or outside Ontario to hear motions under the 1986-1990 hepatitis C settlement agreement without the necessity of a video-conference link to a courtroom in Ontario.

(2) The judge of the Ontario Superior Court of Justice supervising the 1986-1990 hepatitis C settlement agreement may conduct the hearing, which is the subject matter of the motion in these matters dated August 13, 2012, in a location inside or outside Ontario alongside the other two supervisory judges from British Columbia and Quebec.

C. Subsequent events

26After the motion judge's decision, the supervisory judges in British Columbia and Quebec also heard motions for directions on the jurisdictional issue. Both agreed with the motion judge's decision: see Endean v. Canadian Red Cross Society, [2013] B.C.J. No. 1304, 2013 BCSC 1074, 2013 CarswellBC 1828; Honhon c. Canada (Procureur général), [2013] J.Q. no 6643, 2013 QCCS 2782, 2013 CarswellQue 6102 (Sup. Ct.). [page178]

27Quebec's Attorney General did not appeal from the Quebec supervisory judge's decision and so that decision stands.

28British Columbia's Attorney General did appeal. The Court of Appeal for British Columbia ("BCCA") allowed the appeal. It concluded that a British Columbia judge cannot conduct a hearing outside of his or her home province: see Endean v. Canadian Red Cross Society, [2014] B.C.J. No. 254, 2014 BCCA 61, 59 B.C.L.R. (5th) 113. However, the BCCA stated that a superior court judge who is not physically present in British Columbia can conduct a hearing in British Columbia by way of telephone, video conference or other communication medium.

29While the British Columbia appeal and this appeal were pending, class counsel proposed that the claims extension motions be heard concurrently before the three supervisory judges in Toronto. Ontario objected again. As a result, separate claims extension motions were heard in Ontario, Quebec and British Columbia. The supervisory judges reached three conflicting conclusions.

30The Ontario Superior Court provisionally approved the late claims protocol, subject to approval by the courts of British Columbia and Quebec: Parsons v. Canadian Red Cross Society, 2014 ONSC 7788 (S.C.J.). The British Columbia Supreme Court refused to approve the protocol on the basis that approval would amount to a fundamental amendment to the settlement agreement: Endean v. Canadian Red Cross Society, [2014] B.C.J. No. 651, 2014 BCSC 621, at para. 27. The Quebec Superior Court refused to approve the protocol, finding that the motion was premature: Honhon c. Canada (Procureur general), [2014] Q.J. No. 4357, 2014 QCCS 2032 (Sup. Ct.), at para. 30.

31Even though it is now too late to hold hearings on the claims extension motions, the parties argue that the jurisdictional issue before this court is not moot as it is likely to arise again in subsequent settlement administration motions.

32I will say more about mootness and the scope of the appeal later in these reasons.

III. The Issues

[33]

The Issues

Ontario's principal submission is that the motion judge erred in holding that the superior court's inherent jurisdiction to control its own process enabled him, as Ontario's supervisory judge, to participate in concurrent hearings with the other supervisory judges inside or outside Ontario to resolve issues under the settlement agreement. Ontario contends that the Constitution, the common law and legislation prevent the exercise of [page179] inherent jurisdiction to conduct a hearing outside the judge's home province.

34There was a great deal of discussion on appeal about various ways in which technology could and should be used to resolve the jurisdictional question, sparked by the BCCA's decision in Endean. For instance, Ontario submits that an Ontario superior court judge could conduct a hearing from outside Ontario by video link to Ontario.

35While I will address the technology issue, my analysis will focus on the issue of inherent jurisdiction and the application of the doctrine in the context of this case. I first address whether a superior court judge has authority to sit outside Ontario. To answer this question, I will examine if there are any constitutional, common law or statutory barriers precluding such an exercise of authority, and I will consider whether the open court principle prohibits a hearing outside Ontario. I will then consider whether the motion judge exercised his discretionary authority appropriately in the circumstances of this case.

36For reasons that I will set out below, I disagree with Ontario's assertion that the supervisory judges have no jurisdiction to sit together, and that the only way to get around that purported impediment is through the use of video technology.

37Before addressing the jurisdictional issue under appeal, I will briefly deal with three preliminary issues: (1) whether this court has jurisdiction to hear the appeal; (2) whether this court should exercise its discretion to hear the appeal even though it is moot; and (3) the scope of the appeal.

(1) Jurisdiction to hear the appeal

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Jurisdiction to Hear the Appeal

The panel asked counsel for submissions on whether this court or the Divisional Court has jurisdiction to hear this appeal.

39The Class Proceedings Act does not address the right of appeal or the appellate route from an order made on a motion for directions brought pursuant to the terms of a court-approved settlement agreement. As Armstrong J.A. explained in Locking v. Armtec Infrastructure Inc., [2012] O.J. No. 5324, 2012 ONCA 774, 299 O.A.C. 20, at para. 8: "[w]here [the Class Proceedings Act] does not specifically address the rights and avenues of appeal, s. 6(1)(b) of the Courts of Justice Act governs appeals to the Court of Appeal in class proceedings". [page180]

40Section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides:

6(1) An appeal lies to the Court of Appeal from,

(b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a) or an order from which an appeal lies to the Divisional Court under another Act.

41If the motion judge's order is final, then there is a right of appeal to this court, but if his order is interlocutory, then the appeal lies to the Divisional Court with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act.

42The classic statement on the distinction between a final and an interlocutory order appears in this court's decision in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380 (C.A.), at p. 678 O.R.:

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

43In the context of an ongoing proceeding, an order that determines the issue raised on a motion will not be final unless the order has the effect of terminating the action or application, or the order resolves a substantive claim or defence of the parties: see Waldman v. Thomson Reuters Canada Ltd., [2015] O.J. No. 395, 2015 ONCA 53, at para. 22.

44In the present context, the underlying class actions have been resolved by the settlement agreement. No claims or defences remain to be tried. Accordingly, I must take a somewhat modified approach to the classic Hendrickson v. Kallio test for distinguishing between a final or interlocutory order in the present circumstances, where certified national class proceedings have been resolved by a judicially approved settlement agreement and the merits of the parties' claims and defences do not remain to be determined.

45Here, the role of the courts as conferred by the terms of the settlement agreement is to implement and enforce the provisions of that agreement. Section 1(l) in art. 10.01 of the settlement agreement permits class counsel to bring an application for advice and directions to the supervisory judges. This provision states in relevant part:

1. 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 [page181] Funding Agreement. Without limiting the generality of the foregoing, the Courts will:

l. on application of the Administrator, Fund Counsel, the Auditors, any Class Action Counsel, the Joint Committee or the Trustee, provide advice and direction[.]

46Although class counsel's request for directions was styled as a motion rather than an application,¹ in my view, the essential character of the request for directions is akin to an application under rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 14.05(3)(d) states:

14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution[.]

47Class counsel posed the following questions for consideration by the supervisory judge of the Ontario Superior Court of Justice:

1. Whether the judges in Ontario, British Columbia and Quebec (the "Courts") supervising the January 1, 1986-July 1, 1990 Hepatitis C Settlement Agreement (the "Agreement") can sit together in the same province, such that some or all are not present in their own province, to hear concurrent motions with or, alternatively, without a video-link to their own provinces?

2. Whether video-linked concurrent hearings of the Courts sitting in their own provinces are necessary or, alternatively, preferable in any or all circumstances?

3. Whether non-concurrent hearings of the Courts sitting in their own provinces are mandatory?

4. Alternatively, whether the motion brought by Class Action Counsel on August 13, 2012 returnable before Chief Justice Winkler out of province shall be heard in Toronto on a date to be fixed?

48In the notice of motion, class counsel relied on s. 11(2) of the Courts of Justice Act, s. 12 of the Class Proceedings Act, 1992, and several provisions of the Rules of Civil Procedure as [page182] conferring jurisdiction on the supervisory judges to sit together in one province.

49Given the nature of and the grounds for the relief sought, this motion is analogous -- in the sense contemplated by rule 1.04(2) -- to a rule 14.05(3)(d) application seeking the determination of rights that depend on the interpretation of a statute, regulation or contract. Class counsel was seeking declaratory relief involving the determination of a jurisdictional issue that required interpreting the Courts of Justice Act, the Class Proceedings Act, the Rules of Civil Procedure and the settlement agreement.

50In my view, the motion judge's task on the motion for directions fits comfortably into the rule 14.05(3)(d) mould. The motion for directions was not merely a step in the underlying motion for approval of a proposed protocol extending the first claims deadline in the settlement agreement. The questions posed on the motion for directions did not only ask whether the supervisory judges could hear that particular motion while sitting together in one province. Rather, the motion required a determination generally as to whether the supervisory judges may sit together to hear concurrent motions arising under the settlement agreement.

51The motion judge's order 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: see Buck Bros. Ltd. v. Frontenac Builders Ltd. (1994), 1994 CanLII 2403 (ON CA), 19 O.R. (3d) 97, [1994] O.J. No. 1592 (C.A.), at pp. 100-101 O.R.

52I would accordingly hold that this court has jurisdiction to hear the appeal pursuant to s. 6(1)(b) of the Courts of Justice Act.

53It 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.

(2) Mootness

[54]

Mootness

The second preliminary issue is mootness. Whether the supervisory judges can sit together to hear the claims extension motions is no longer a live issue, as the motions have already been heard and decided. Accordingly, the issue is whether this [page183] court should exercise its discretionary authority to hear this appeal even though it is moot.

55The parties say that the court should decide the jurisdictional issue because it is likely to arise again in connection with the administration of the settlement agreement and other pan-Canadian class proceedings.

56I agree with the parties. 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), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, at p. 362 S.C.R. 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 behaviour modification.

(3) Scope of the appeal

[57]

Scope of the Appeal

The third preliminary issue is the proper scope of this appeal. In oral argument, class counsel urged this court to consider a hypothetical scenario in which the supervisory judges, sitting together in one location to hear a motion under the settlement agreement, must call upon the court's coercive powers -- for example, the power to compel witnesses and the contempt power. Considering such a scenario is necessary, says class counsel, to avoid further litigation of jurisdictional disputes.

58That is a hypothetical situation. As I will explain later, the court's ability to rely on its inherent jurisdiction must be assessed on a case-by-case basis. Without concrete facts, it is impossible to make that assessment, and I would decline to decide it.

59Thus, I will confine these reasons to the narrower circumstance in which the three supervisory judges sit together to adjudicate on a paper record without the need to exercise coercive powers, which was the situation considered by the motion judge.

60I will consider whether an Ontario judge can sit outside Ontario with his or her supervisory counterparts and also whether the two other supervisory judges can sit within Ontario, as the motion judge's order contemplated both scenarios. I note that Ontario amended its notice of appeal to add the related issue of whether the other supervisory judges can sit within Ontario. None of the parties object to this added issue, and all parties addressed it fully in argument. [page184]

61My analysis of the jurisdictional issue proceeds in two parts. First, I determine if the motion judge had the discretionary authority to order an out-of-province hearing. Second, I consider whether the motion judge exercised his discretion appropriately in the circumstances of this case.

B. Jurisdictional issue

(1) Did the motion judge have the discretionary authority to order an out-of-province hearing?

[62]

Jurisdictional Issue

In addressing whether the motion judge was correct in concluding that he had the discretionary authority to order an out-of-province hearing, I will first outline in general terms the doctrine of inherent jurisdiction. I will then examine whether there are constitutional, common law or statutory barriers preventing the motion judge from holding a joint hearing inside or outside Ontario. Finally, I will consider the effect of the open court principle and whether it precludes a hearing outside Ontario.

(a) Doctrine of inherent jurisdiction

[63]

Doctrine of Inherent Jurisdiction

As this appeal turns on the doctrine of inherent jurisdiction, it is important to begin by examining the scope and nature of the doctrine.

64The Supreme Court recently described the concept of inherent jurisdiction in Ontario v. Criminal Lawyers' Assn. of Ontario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43.

65Writing for the majority, Karakatsanis J. cited the seminal 1970 article by I.H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Probs. 23 ("Jacob"). In this article, at p. 51, Jacob describes inherent jurisdiction broadly as a reserve or fund of powers that may be employed as necessary to do justice:

[T]he 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 of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

66Karakatsanis J., quoting R. v. Caron, [2011] 1 S.C.R. 78, [2011] S.C.J. No. 5, 2011 SCC 5, adopted Jacob's description of inherent jurisdiction, at para. 21:

These powers are derived "not from any statute or rule of law, but from the very nature of the court as a superior court of law" to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner". [page185]

This description emphasizes the use of inherent powers to permit the court to administer justice effectively.

67While both descriptions suggest inherent jurisdiction is broad, Ontario points to paras. 18 and 19 of Karakatsanis J.'s reasons in Criminal Lawyers' Assn. for the proposition that "inherent jurisdiction of the courts is limited to a narrow core":

The essential nature and powers of the superior courts are constitutionally protected by s. 96 of the Constitution Act, 1867. Accordingly, the "core or inherent jurisdiction which is integral to their operations . . . cannot be removed from the superior courts by either level of government, without amending the Constitution" (MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at para. 15). The rationale for s. 96 has evolved to ensure "the maintenance of the rule of law through the protection of the judicial role" (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 ("Provincial Judges Reference"), at para. 88).

In MacMillan Bloedel, a majority of this Court described the powers at the core of a superior court's jurisdiction as comprising "those powers which are essential to the administration of justice and the maintenance of the rule of law" (para. 38), which define the court's "essential character" or "immanent attribute" (para. 30). The core is "a very narrow one which includes only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system" (Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186, at para. 56, per Lamer C.J.).

(Emphasis added)

68As I read this passage, Karakatsanis J. is describing the core jurisdiction of a superior court, not the court's inherent powers. The concepts of core jurisdiction and inherent jurisdiction are distinct. Ontario acknowledged this distinction in oral argument.

69As explained by Karakatsanis J. [at para. 19], core jurisdiction, which comprises "only critically important jurisdictions which are essential to the existence of a superior court", is narrow and cannot be removed without amending the Constitution. Core jurisdiction is limited to those powers possessed by superior courts at the time of Confederation: "new powers or jurisdiction are not part of the core of jurisdiction protected via s. 96 [of the Constitution]": Reference re Young Offenders Act (P.E.I.), 1991 CanLII 11713 (SCC), [1991] 1 S.C.R. 252, [1990] S.C.J. No. 60, at p. 271 S.C.R.

70In contrast, inherent jurisdiction provides the superior court with a "reserve or fund of powers, a residual source of powers" (Jacob, at p. 51) that may be used to serve four functions: (i) to ensure convenience and fairness in legal proceedings; (ii) to thwart actions that would render judicial proceedings ineffective; (iii) to prevent abuse of process; and (iv) to act in aid of superior courts and in aid or control of inferior courts and tribunals: [page186] see MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, [1995] S.C.J. No. 101, at para. 35, citing Keith Mason, "The Inherent Jurisdiction of the Court" (1983), 57 Austl. L.J. 449, at p. 449.

71By contrast to the constitutionally protected core jurisdiction of superior courts, a superior court's inherent powers may be limited by statute, as Karakatsanis J. noted in Criminal Lawyers' Assn., at para. 23:

It has long been settled that the way in which superior courts exercise their powers may be structured by Parliament and the legislatures (see MacMillan Bloedel, at para. 78, per McLachlin J., dissenting on other grounds). As Jacob notes (at p. 24): " . . . the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision".

(Emphasis in original)

72Inherent jurisdiction is also limited by "the institutional roles and capacities that emerge out of our constitutional framework and values": Criminal Lawyers' Assn., at para. 24. For instance, the "powers recognized as part of the courts' inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order and by the particular institutional capacities that have evolved from that separation": Criminal Lawyers' Assn., at para. 26.

73Thus, a superior court may exercise its inherent jurisdiction on matters regulated by statute but may not contravene any statutory provision. A court's exercise of inherent jurisdiction must also respect Canada's constitutional framework.

74Within these limits, "[n]ovelty has not been treated as a barrier to necessary action" in exercising inherent jurisdiction: Caron, at para. 27.

75With these principles in mind, I turn to the application of the doctrine in the context of this case.

(b) Constitutional limitations

(i) Ontario's submissions

[76]

Constitutional Limitations

Ontario offers three reasons the motion judge's order is constitutionally problematic.

77First, the motion judge's order fails to respect the federal nature of Canada's court system, which envisions parallel, co-operating but distinct court systems with provincial and territorial courts sitting in their respective jurisdictions.

78Second, whether Ontario's superior court judges should be able to hold hearings outside Ontario (and whether other superior court judges should be able to hold hearings in Ontario) is [page187] a matter for the legislature, not the courts. Relying on the Supreme Court's decision in Criminal Lawyers' Assn., Ontario submits that the courts "must give sufficient weight to the constitutional responsibilities of the legislative and executive branches" so as not to "upset the balance of roles, responsibilities, and capacities that has evolved in our system of governance over the course of centuries": Criminal Lawyers Assn., at paras. 27-31.

79Third, conducting a hearing in another province infringes the sovereignty of that province, especially if the visiting court were to attempt to exercise its coercive powers, such as the power to summon witnesses or make a contempt order. Ontario asserts that superior courts' coercive powers are "part of their essence as superior courts" (MacMillan Bloedel, at p. 753 S.C.R.) and a court cannot sit as a superior court without them.

80As I will explain, I am not persuaded that any of these constitutional arguments preclude the motion judge's order.

(ii) Federal nature of Canada's court systems

81Canada's parallel, co-operating but distinct court systems are grounded in s. 92(14) of the Constitution Act, 1867. Section 92(14) gives the provinces exclusive jurisdiction over "[t]he administration of justice in the Province" (emphasis added), including the constituting, maintenance and organization of provincial courts in each province.

82Sections 91 and 92 are found in Part VI, "Distribution of Legislative Powers", in the Constitution Act, 1867. These sections set out the powers of the federal Parliament and the provincial legislatures.

83Ontario also points to other provisions of the Constitution that recognize that the superior court of each province is distinct from those of the other provinces. For instance, s. 96 provides that "[t]he Governor General shall appoint the Judges of the Superior, District and County Courts in each Province" (emphasis added). And ss. 97 and 98 make it clear that judges of the federally appointed courts in any given province "shall be selected from the respective Bars of that Province" (emphasis added).

84I agree that these provisions contemplate a federal system with parallel, co-operating but distinct courts. However, I do not see how the motion judge's order is at odds with these provisions.

85First, I do not see how s. 92(14), which falls under the "Distribution of Legislative Powers", applies where the legislature has failed to legislate.

86Second, the motion judge's order contemplated that the three supervisory judges act in parallel and co-operatively to decide the three claims extension motions. Each supervisory [page188] judge would conduct a separate hearing to decide the claims extension motion brought in the judge's home jurisdiction. However, the parallel motions would be conducted in a single location to enhance co-operation between the three judges and thus facilitate implementation and enforcement of the settlement agreement under which the supervisory judges have personal and subject matter jurisdiction -- an agreement to which the federal and all provincial and territorial governments in Canada are party. The three orders arising from the claims extension motions would issue from the home provinces of the supervisory judges. In my view, such a process respects the distinct nature of the courts of each province while stimulating the co-operation required to effectively administer the settlement agreement.

87It is also significant that Ontario has effectively conceded that out-of-province hearings are not presumptively unconstitutional. In recognizing that out-of-province hearings can be authorized by provincial statute, and, indeed, insisting that they must be, Ontario has conceded the constitutionality of such hearings. If Ontario has the legislative authority to permit out-of-province hearings, there can be nothing presumptively unconstitutional about them.

88There is no merit to this first constitutional argument.

(iii) The respective roles of legislatures and courts

89Ontario submits that the motion judge's decision does not respect the institutional roles of the legislature and the courts, sometimes referred to as the separation of powers. It points to s. 92(14) of the Constitution Act, 1867 for the proposition that the Constitution grants the Legislature of Ontario exclusive jurisdiction over the administration of justice in the province. In its submission, "[i]f there is a need to allow the Superior Court to hold hearings outside Ontario, that need can only be met by legislative action". Courts should leave major law reform to the legislature, says Ontario.

90I agree that it would be desirable for the legislature to legislate on national class actions. In particular, I agree with the Supreme Court's statement in Lépine, at para. 57, that "provincial legislatures should pay more attention to the framework for national class actions and the problems they present".

91However, I do not agree that, where the legislature fails to legislate, the court's hands are tied. To borrow the words of McLachlin C.J.C., "[a]bsent comprehensive legislation, the courts must fill the void under their inherent power to settle the [page189] rules of practice and procedure as to disputes brought before them": Western Canadian Shopping Centres, at para. 34.

92Nor do I agree that the motion judge's order somehow amounts to "major legislative reform" that infringes the legislature's role. He held that the three supervisory judges had the discretionary authority to sit together inside or outside Ontario to hear motions under the settlement agreement. And he determined that, in the particular circumstances before him, it was appropriate to exercise that discretionary authority to permit the judges to sit together to hear the claims extension motions. As the motion judge noted in his reasons, at para. 52, the motion before him raised a "narrow procedural issue concerning the physical location of a hearing involving the pan-Canadian settlement agreement of the Hepatitis C class actions". I do not see how his order on this narrow issue amounts to major law reform.

93I do not agree that the motion judge's order upsets the balance between the court and the legislature.

(iv) Sovereignty and coercive powers

94Ontario raises a third and related constitutional argument. It contends that holding a hearing is a fundamental exercise of a province's sovereignty, and so an Ontario superior court hearing a matter in another province infringes that other province's sovereignty. Ontario is particularly concerned about the prospect of a superior court judge exercising coercive authority outside his or her home province. It asserts that only legislation can authorize such an out-of-province hearing without trenching on provincial sovereignty.

95I have already addressed Ontario's submission that legislation is required for a judge to conduct a hearing in another province. However, I have not squarely addressed the question of provincial sovereignty and the use of coercive powers in another province.

96In 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. [page190]

97Ontario submits that it is no answer to say it is unlikely a court would need to exercise its coercive powers. Even if such powers might not be required, the court must possess coercive powers since, without coercive powers, a court is not a superior court. In other words, a court cannot be stripped of its core coercive powers.

98I reject this submission. The motion judge's order does not purport to strip the court of any powers, nor could it. Rather, it simply is not contemplated that the court will need to exercise its coercive powers in this case.

99The possibility that a visiting court might infringe provincial sovereignty by the use of coercive powers -- for instance, in a hearing involving witnesses -- should be evaluated on the facts of a case where it is a live issue.

100In conclusion, I reject this ground of appeal. There is no constitutional impediment to the motion judge's order.

(c) Common law limits

[101]

Common Law Limits

I now turn to Ontario's common law objections to the motion judge's exercise of inherent jurisdiction. Ontario asserts that the common law prohibits a superior court judge from sitting outside the physical boundaries of the judge's province of appointment.

102Ontario submits that, going back as far as the Magna Carta, English courts were precluded at common law from sitting outside the boundaries of England. It says the English common law is still relevant today because it was received into Ontario law and it has not since changed.

103Ontario relies on a number of English cases, including R. v. Keyn (1876), 2 Ex. D. 63. The issue in Keyn was whether the English superior courts had jurisdiction over an offence committed on a ship less than three miles offshore (the then-limit of England's territorial sea). In concluding that they did not, the majority held that the boundaries of English counties lay at the low-water mark. Relying on the reasoning in Keyn, the Supreme Court of Canada subsequently held that common law courts have no jurisdiction over waters that lie outside provincial boundaries: see Reference re Ownership of Off Shore Mineral Rights (British Columbia), 1967 CanLII 71 (SCC), [1967] S.C.R. 792, [1967] S.C.J. No. 70, 65 D.L.R. (2d) 353.

104Ontario also points to more recent jurisprudence, including the BCCA's decision in Endean, in which the court concluded, at para. 47, that "[t]here is no authority from any common law jurisdiction that holds that a judge of a court can hold hearings [page191] outside his or her territorial boundaries. What limited authority that does exist is to the contrary".

105In support of that conclusion, the BCCA accepted that Ewachniuk v. Law Society of British Columbia, 1998 CanLII 6469 (BC CA), [1998] B.C.J. No. 372, 156 D.L.R. (4th) 1 (C.A.) accurately set out the law. At para. 48 of its decision, the BCCA excerpted the following passage from para. 31 of Rowles J.A.'s reasons in Ewachniuk:

Extraterritoriality is the projection of authority beyond the territory of a state. In Canada, the jurisdiction of the superior courts of the provinces is determined internally by the Constitution and externally by the boundaries of the provinces. While courts do project their authority beyond their boundaries through the exercise of in personam jurisdiction, domestic courts do not sit outside their boundaries.

106With respect to the BCCA, I disagree with its conclusion that the common law precludes a superior court judge from ever sitting outside his or her home jurisdiction. Instead, I accept the motion judge's analysis and conclusion on this point.

107The motion judge first considered the historical jurisdiction of English courts to sit outside England. He concluded that restrictions under English law were not determinative.

108Instead, the motion judge found the Supreme Court's decision in Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077, [1990] S.C.J. No. 135 instructive. He noted, at para. 23, the court's observations in Morguard that "there is no comparison between the interprovincial relationships of today and the relationships between foreign countries in the 19th century" and that there is a "need to shape common law rules in a way that accommodates modern commercial and societal realities".

109And, at para. 25, the motion judge concluded:

For the same reasons that the rigid English common law requirements for enforcing foreign judgments are not suited to modern commercial realities or the Canadian constitutional landscape, English common law prohibiting English courts from sitting outside England should not be applied to prohibit the superior courts of this country from sitting outside their home provinces when it would be in the interests of justice to do so. The English common law rule precluding English courts from sitting outside England is not suited to modern realities of increasingly complex litigation involving parties and subject matters that transcend provincial borders. Moreover, there is a significant difference between an English court sitting outside England and a provincial superior court sitting elsewhere in Canada. The latter situation does not engage any issue of sovereignty among foreign states.

110The motion judge noted that the only common law authority that speaks to the issue of a superior court judge [page192] sitting outside provincial boundaries is Ewachniuk. He determined it was not binding.

111The motion judge pointed out that the central question in Ewachniuk was whether a discipline panel of the Law Society of British Columbia had statutory authority to hold part of a hearing in the United States. Whether a superior court judge could sit outside the province was not directly before the court. Rowles J.A.'s comments concerning the jurisdiction of provincial superior courts were therefore obiter. The motion judge explained, at para. 30, that Rowles J.A.'s comments that "the jurisdiction of the superior courts of the province is determined internally by the Constitution and externally by the boundaries of the provinces" and that superior courts "do not sit outside their boundaries" (Ewachniuk, at para. 31) were not "necessary for the decision and . . . not mentioned in the concurring reasons".

112In any event, the motion judge, at para. 31, distinguished Ewachniuk: "The conclusion that a particular tribunal created by a provincial legislature has no power to sit outside the boundaries of that province is not determinative of where a court of inherent jurisdiction may sit." Nor was Rowles J.A. "considering the context of a joint hearing conducted by superior courts of three different provinces determining an issue related to the implementation of a pan-Canadian settlement agreement": Parsons, at para. 31.

113The motion judge then turned to common law authority on inherent jurisdiction, which he found supported the conclusion that superior courts have discretionary authority to sit outside their home provinces as a function of their inherent jurisdiction to control their own process. In particular, he noted Fontaine v. Canada (Attorney General), supra. In that case, judges of the superior courts of Ontario, British Columbia, Quebec, Alberta and Saskatchewan sat together in Calgary, Alberta to hear a motion for approval in the Indian residential schools class settlement. The superior courts of Manitoba, Yukon, Norwest Territories and Nunavut linked to the Alberta courtroom by telephone conference.

114As 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.

115Historical 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" [page193] and that "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.

116I also agree with the motion judge's assessment of Ewachniuk. The case is not binding and the comments in question were obiter.

117Moreover, Ewachniuk and the other British Columbia trial decisions cited by the BCCA in Endean deal with very different situations than the one before this court. For instance, Endean referred to two cases in which a superior court judge from British Columbia travelled to the U.S. to obtain evidence as an examiner or commissioner: see Endean, at paras. 50-52.

118Endean also relied on the decision in R. v. Pilarinos, [2001] B.C.J. No. 2540, 2001 BCSC 1690, 52 W.C.B. (2d) 161, in which Bennett J. concluded that it was permissible for a British Columbia judge to issue an authorization to intercept private communications between persons in British Columbia while the judge was on vacation in Palm Springs.

119Not only are these transnational cases not binding on this court, but in my view they do not establish the existence of a clear rule precluding superior court judges from sitting in other provinces in all circumstances.

120As noted by the motion judge, a more similar case on the facts to the one here is Fontaine, which also arose in the context of a complex national class action. While the jurisdictional issue was not raised in Fontaine, it is notable that the settlement in the Indian residential school national class action was facilitated by judges sitting together in one location.

121In conclusion, I am not satisfied that there is a common law rule precluding the motion judge's order.

(d) Statutory limits

[122]

Statutory Limits

Ontario submits that the history of Ontario's court legislation makes it clear that Ontario's Superior Court of Justice cannot hold a hearing outside of Ontario. In support of this argument, it reviews the history of court legislation in Ontario from Confederation to the present day, culminating in s. 11(2) of the Courts of Justice Act, which provides as follows:

11(2) The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.

123Relying on this provision, Ontario submits that since the English and Ontario courts did not historically have the jurisdiction to sit outside their respective territories, the Superior Court [page194] of Justice is equally precluded from sitting outside the boundaries of Ontario.

124Ontario also points to s. 15(1) of the Courts of Justice Act, saying that it limits the ability of an Ontario superior court judge to sit outside Ontario. The section provides that the "Chief Justice of the Superior Court of Justice shall assign every judge of the Superior Court of Justice to a region and may re-assign a judge from one region to another."

125Ontario also submits that there are legislative limits on judges from other provinces sitting in Ontario.

126I disagree. Although inherent jurisdiction may be limited by statutory enactment, the limits must be explicit. As explained by the Supreme Court in Caron, at para. 34, the inherent jurisdiction of the superior courts cannot be cut down by mere inference:

The Crown also relies on various statutes dealing with costs in matters pending before the Court of Queen's Bench itself, including the Court of Queen's Bench Act, R.S.A. 2000, c. C-31, s. 21, the Judicature Act, R.S.A. 2000, c. J-2, s. 8, and the Alberta Rules of Court, Alta. Reg. 390/68, rr. 600 and 601. Certainly these enactments authorize the award of costs in various circumstances, but words of authorization in this connection should not be read as words limiting the court's inherent jurisdiction to do what is essential "to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner" (Jacob, at p. 28). It would be contrary to all authority to draw a negative inference against the inherent jurisdiction of the superior court based on "implication" and conjecture about legislative intent: Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437.

(Emphasis added)

127Absent any express statutory limitation, superior courts may draw upon their inherent jurisdiction "as necessary whenever it is just or equitable to do so" (Caron, at para. 24), within the limits of that doctrine set out above.

128The existence of legislation on a given matter does not automatically oust the inherent jurisdiction of the courts. As Binnie J. noted, "the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision": Caron, at para. 32, quoting Jacob, at p. 24; see, also, Glover v. M.N.R. ("Glover No. 1") (1980), 1980 CanLII 63 (ON CA), 29 O.R. (2d) 392, [1980] O.J. No. 3676 (C.A.), at pp. 399-400 O.R., affd 1981 CanLII 64 (SCC), [1981] 2 S.C.R. 561, [1981] S.C.J. No. 97.

129However, as the Supreme Court noted in Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 CanLII 164 (SCC), [1976] 2 S.C.R. 475, [1975] S.C.J. No. 84, at p. 480 S.C.R., inherent jurisdiction does not "empower a judge . . . to make an order negating the unambiguous expression of the legislative will". [page195]

130In my view, the provisions relied upon by Ontario do not constitute an "unambiguous expression of the legislative will" (Baxter Student Housing Ltd., at p. 480 S.C.R.) regarding hearing location.

131As a matter of statutory interpretation, s. 11(2) of the Courts of Justice Act is inclusive, not exclusive. It does not say the Superior Court has only the jurisdiction historically exercised by the courts of England and Ontario. Rather, it says the Superior Court has all the jurisdiction historically exercised by those courts.

132To accept Ontario's argument would freeze in time the inherent jurisdiction of the Superior Court. That cannot be correct. Limiting inherent jurisdiction to past practice is inconsistent with the very nature of inherent jurisdiction, which is to allow the court to control and regulate its process as the need arises. As Jacob wrote, at p. 23, "[t]he inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways". Like Binnie J., "I agree with this analysis": Caron, at para. 29.

133And, as observed above, the Supreme Court has made it clear that novelty is not a barrier to necessary action: see Caron, at para. 27.

134Furthermore, I do not see how s. 15(1) of the Courts of Justice Act precludes the motion judge's order. In Ontario's submission, s. 15(1), read in conjunction with other provisions defining "region", limits Ontario judges to sitting within Ontario.

135As I read s. 15(1), it does not speak to where a superior court judge may conduct a hearing. Rather, it requires the chief justice of the Superior Court of Justice to assign or allocate judges to regions throughout Ontario. In my view, the motion judge's order does not contravene this provision.

136Finally, Ontario points to a number of provisions in the Courts of Justice Act and rules under the Act in support of its argument that the "Legislature has not authorized other provinces' courts to hold hearings in Ontario." It says that the provisions do not contemplate that other courts might sit in Ontario. In particular, it points to various provisions it says preclude courts from outside Ontario from exercising coercive powers within Ontario.

137In my view, Ontario's argument on this point ignores the principle that "the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision": Caron, at para. 32. In this case, I do not see how permitting British Columbia's and Quebec's supervisory [page196] judges to conduct a joint hearing with Ontario's supervisory judge on a paper motion would contravene Ontario law.

138Accordingly, I would not give effect to these statutory arguments.

(e) Open court principle

[139]

Open Court Principle

Ontario submits the open court principle precludes an Ontario judge from conducting a hearing outside Ontario. I disagree.

140Open justice is fundamental to our justice system. The open court principle is a "hallmark of a democratic society" which "has long been recognized as a cornerstone of the common law": Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24.

141Open courts allow Canadians to observe "that justice is administered in a non-arbitrary manner, according to the rule of law": Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, [1996] S.C.J. No. 38, at para. 22. And "[a]n open court is more likely to be an independent and impartial court": Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253, [2007] S.C.J. No. 43, 2007 SCC 43, at para. 32. Finally, the principle gains importance from its clear nexus with freedom of expression, enshrined in s. 2(b) of the Canadian Charter of Rights and Freedoms: see Edmonton Journal (The) v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, [1989] S.C.J. No. 124, at pp. 1337-40 S.C.R. The freedom of the press to attend and report on court proceedings is core to the constitutional nature of the open court principle: see Edmonton Journal, at pp. 1339-40 S.C.R.

142But the principle of open courts is not absolute. The principle does not guarantee a right to be physically present in the courtroom: see Canadian Broadcasting, at para. 27. And "the open court principle itself must yield to circumstances that would render the proper administration of justice unworkable": Canadian Broadcasting, at para. 29.

143With these principles and functions of open justice in mind, I turn to the motion judge's order. The order -- excerpted above, at para. 25 -- has two parts. Part 1 of the order concerns whether a judge has the discretionary authority to direct an out-of-province hearing. Part 2 concerns the exercise of the motion judge's discretion.

144Part 1 directs that a judge of Ontario's Superior Court of Justice has the discretionary authority to sit outside Ontario "without the necessity of a video-conference link to a courtroom in Ontario". While Part 1 of the order directs that a video link [page197] may not be necessary, Part 2 does not preclude a video link if class counsel or the public asks for a link. Therefore, when both parts of the order are read together, it becomes clear that the presence or absence of a video link remains in the judge's discretion, to be determined on a case-by-case basis. What is equally clear is that, according to the motion judge, the discretionary authority to order an out-of-province hearing is not contingent on whether a video link is used.

145I agree with the motion judge. The court's discretionary authority to hold an out-of-province hearing does not depend on the presence of a video link. I say this for three primary reasons.

146First, out-of-province hearings would presumably take place in a courtroom open to the public, thereby preserving the cleansing effect public scrutiny has on the legitimacy of legal proceedings. A core tenet of the open court principle would remain unaffected.

147Second, the media would still be free to report on what occurred at the hearing. The proliferation of online news media has helped Canadians stay informed about matters taking place across the nation. As the Supreme Court observed in Edmonton Journal, at p. 1340 S.C.R., "[i]t is only through the press that most individuals can really learn of what is transpiring in the courts". Therefore, Canadians would still have the opportunity to ensure "that justice is administered in a non-arbitrary manner, according to the rule of law": Canadian Broadcasting, at para. 22. The driving factor behind the proximity between open justice and freedom of expression would be preserved.

148Third, as I explain above, 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.

149The open court principle, properly understood, does not preclude an Ontario judge from conducting a hearing outside Ontario.

(f) Conclusion

150Having determined there are no constitutional, common law or statutory barriers to employing the inherent powers of the court to conduct an out-of-province hearing -- and having addressed the effect of the open court principle -- I conclude the [page198] motion judge was correct in determining the Ontario supervising judge had the authority to sit with his judicial supervisory counterparts inside or outside Ontario to hear motions under the settlement agreement.

151I now turn to whether he properly exercised that discretionary authority in the circumstances of this case.

(2) Did the motion judge properly exercise his discretionary authority?

[152]

Exercise of Discretionary Authority

Ontario submits that even if the Superior Court of Justice has jurisdiction to hold a hearing outside Ontario, it was not appropriate to permit such a hearing in this case. The motion judge, says Ontario, failed to give sufficient weight to a number of factors, including the open court principle and the availability of alternative solutions such as video conferencing.

153To repeat what I said earlier, there is no reason to interfere with the motion judge's discretionary decision that it was appropriate in the circumstances to permit the Ontario supervisory judge to sit inside or outside of Ontario with the other supervisory judges to resolve the claims extension motions.

154Before turning to his decision, I note that a discretionary decision of a motion judge in a class proceeding is entitled to significant deference from this court. "[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), 115 O.R. (3d) 653, [2013] O.J. No. 2012, 2013 ONCA 279, at para. 40.

155The motion judge recognized that inherent jurisdiction fulfills a number of functions, including ensuring convenience and fairness in legal proceedings and thwarting actions that would render judicial proceedings ineffective. Consistent with those functions, he noted, at para. 38, that inherent jurisdiction permits a court "to fashion procedures to facilitate the efficient and effective resolution of issues encountered in implementing a pan-Canadian settlement agreement". He recognized, at para. 43, that while "[a] court should exercise its discretion to hold a hearing outside its home province sparingly", the interests of justice may require a court to exercise that discretion in certain situations. In the class actions context, "the recognized goals of achieving judicial economy and enhancing access to justice" are relevant factors in determining whether it is appropriate for a court to hold a hearing outside its home province: Parsons, at para. 43. [page199]

156In assessing whether it would be appropriate for the court to exercise its discretionary authority to sit outside Ontario, the motion judge applied the above principles to the facts before him. Specifically, the motion judge considered the following circumstances of this case:

(1) The claims extension motions arose in the context of a complex pan-national class action.

(2) The supervisory judges had subject matter and personal jurisdiction over the proceeding -- a scenario that occurs infrequently.

(3) Under the terms of the settlement agreement, the supervisory courts must issue orders without material differences for the orders to have any effect.

(4) Allowing the supervisory judges to sit together would ensure they receive the same oral and written submissions and would permit them to confer directly. It would thus facilitate consistent judgments and save expense and valuable resources

(5) The risk of inconsistent judgments is real, not hypothetical.

(6) Alternative proposals would not be as effective. For instance, the motion judge noted, at para. 48, the use of video-conferencing technology to permit concurrent proceedings would not "offer the equivalent procedural advantages of holding a hearing before all the supervisory judges in one location".

(7) Class counsel had not requested a video link to an Ontario courtroom on behalf of the plaintiffs. Therefore, a video link was not required in the circumstances to respect the open court principle.

157As noted above, Ontario takes issue with the motion judge's weighing of the last two factors: the availability of the video-conferencing option and the open court principle.

158In Ontario's submission, the motion judge failed to give sufficient weight to the video-conferencing option. The motion judge considered a proposal of three concurrent hearings in three separate locations: British Columbia, Ontario and Quebec. Video conferencing would connect the three courtrooms.

159Ontario submits that while inherent jurisdiction may be exercised in a wide variety of circumstances, it may only be exercised to the extent necessary. In this case, the motion judge [page200] erred because it was not necessary to sit outside Ontario without a video link back to an Ontario courtroom.

160On appeal, the intervenors also suggest it was unnecessary for the motion judge to have granted the order he did since, based on Endean, it was possible for the three judges to physically meet outside Ontario and yet still hold hearings in their home province by broadcasting the proceedings to open courtrooms in each province.

161I accept that when inherent jurisdiction is relied upon it must be necessary to address the "specific and exceptional circumstances" of the case: Criminal Lawyers' Assn., at para. 47. Deciding whether the case at hand presents such specific and exceptional circumstances falls within the motion judge's discretionary authority. Here, in assessing whether to exercise his discretionary authority, the motion judge considered whether the alternative proposal advanced by Ontario of using video-conferencing technology to link the three judges sitting in different locations would be a satisfactory alternative. In other words, he considered whether it was necessary to exercise his discretionary authority to permit the court to sit outside Ontario or whether another option would suffice.

162He concluded, at para. 48, that the video-conference alternative suffered from "technical and logistical constraints". He found that "video-conferencing technology does not offer the equivalent procedural advantage of holding a hearing before all the supervisory judges in one location": Parsons, at para. 48. In my view, there is no reason for this court to interfere with that finding. As acknowledged in Criminal Lawyers' Assn., inherent powers enable judges to administer justice in a regular, orderly and effective manner. Here, the motion judge considered whether the proposed alternative would be effective but concluded that it would not be.

163In 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 of this case, is unreasonable.

164The motion judge did not have the opportunity to consider the BCCA's alternative solution presented in Endean -- namely, that the three supervisory judges could sit together in one location but still each hold hearings in their home province via video link -- as that idea was not presented to him. [page201]

165With respect to the BCCA, I fail to see how the mere presence of a video link resolves the jurisdictional issue before this court. The BCCA did not point to any authority for the proposition that a hearing is deemed to be in the province of British Columbia so long as (1) there is an audio or video link to an open courtroom in British Columbia and (2) counsel and other participants have the option of attending at a courtroom in British Columbia.

166Not only has the BCCA not pointed to authority for its novel idea but I am not convinced its proposal would necessarily resolve the practical problems identified by the motion judge. If participants were to elect to remain in their home province, the courts would still need to confront many of the same "technical and logistical" difficulties identified by the motion judge.

167On the other hand, if the participants were to all attend in one location, the courts would be accepting what amounts to a legal fiction -- that a hearing's physical location (i.e., the courtroom where the parties and judges are located) can be different than its "deemed location" (i.e., the courtroom receiving the video signal). In my view, there is no need to resort to such a legal fiction given the court's inherent jurisdiction to control its own process.

168Turning to the open court principle, Ontario submits the motion judge erred in focusing on the interests of class members rather than on the interests of Ontarians as a whole. Ontario points to para. 50 of his reasons:

Class counsel consented on behalf of all class members to the hearing being conducted in another province. This is a complete answer to Ontario's concerns that the open court principle is imperiled by holding the hearing outside of Ontario.

169And, at para. 51, the motion judge commented:

If Ontario class members had wanted to observe the hearing, class counsel could have requested that the hearing be transmitted by way of video-link to an Ontario courtroom. In the present case no such request was made.

170I agree that the motion judge erred in focusing exclusively on the interests of class members. The open court principle requires Ontario courts to consider the interests of all Ontarians, not just those of a limited subset. However, as I will explain, I see no reason to interfere with the motion judge's decision.

171As previously mentioned, Part 1 of the motion judge's order directs that an Ontario judge has the discretionary authority to order an out-of-province hearing without the necessity of a video-conference link to a courtroom in Ontario. Part 2 of the motion judge's order -- the part of the order concerning the [page202] actual exercise of the motion judge's discretion -- does not preclude a video link if class counsel or the public requests one.

172An important factor for an Ontario judge to consider when ordering an out-of-province hearing is the effect the use of a video link will have on the ability of Ontarians to know what transpired in the courtroom. I reiterate that although a court's inherent jurisdiction to order an out-of-province hearing is not dependent on the presence of a video link, the effect the presence or absence of a video link has on open justice remains an important factor to consider in exercising the court's inherent power in each case.

173The motion judge's order does not preclude the supervisory judges from considering this important factor.

174Before concluding, I wish to briefly respond to my colleague Juriansz J.A.'s reading of s. 135(1) of the Courts of Justice Act. He says this section requires that "the hearing of the Ontario claims extension motion must be held in an Ontario courtroom open to the Ontario public". He concludes, however, that a hearing linked by video to an Ontario courtroom is held in Ontario even if the judge sits outside of Ontario. The motion judge erred, my colleague says, in failing to order a video link between the out-of-province sitting and an Ontario courtroom.

175With respect, I do not agree that s. 135(1) requires that the hearing take place in an Ontario courtroom. To compel the Ontario judge to hear the claims extension motion in an Ontario courtroom, s. 135(1) must either limit the superior court's inherent jurisdiction or constrain the motion judge's discretion such that the motion judge erred in failing to order a video link to an Ontario courtroom. In my view, s. 135(1) does neither.

176As I explained earlier, the court may exercise its inherent jurisdiction even in respect of matters regulated by statute or by a rule of court so long as it can do so without contravening any statutory provision.

177Section 135(1) requires that, subject to subsection (2), "all court hearings shall be open to the public".

178This court has interpreted s. 135(1) in Palkowski v. Ivancic (2009), 100 O.R. (3d) 89, [2009] O.J. No. 4103, 2009 ONCA 705. As Juriansz J.A. noted, at para. 23 of Palkowski, s. 135 "is the embodiment of the open court principle".

179I discussed the purposes of the open court principle above, which include allowing Canadians to observe that justice is administered in a fair manner. I agree that open justice is fundamental to our justice system. I do not agree, however, that the open court principle dictates the geographic location in which a hearing is held. In a country as large as Canada, the [page203] reality is that litigants and other members of the public may have to travel considerable distances to attend a court hearing. Even within the Province of Ontario, a litigant or member of the public from Ontario may have to travel a considerable distance to attend a court hearing within the province. In my view, that does not offend the principle that courts be open to members of the public.

180Nor, in my view, does the wording of s. 135 dictate that to be "open to the public" the hearing must be located within Ontario. My colleague effectively reads words into s. 135(1) that are not there. He reads the section as saying that all court hearings shall be open to the public "at a location in Ontario".

181While the Ontario public (or some segment of it) may find it more difficult to access an out-of-province hearing, a hearing held in an open courtroom elsewhere in Canada is no less open to the Ontario public.

182In other words, s. 135(1) does not preclude an Ontario judge from exercising inherent jurisdiction to sit outside the province.

183Nor does s. 135 change my view that there is no reason to interfere with the motion judge's discretionary decision to permit the supervisory judge to sit outside Ontario without the necessity of a video link in the circumstances of this case. As is evident in paras. 48-51 of his reasons, the motion judge considered the possibility of linking courtrooms through video-conferencing technology. The motion judge did not exclude the Ontario public either physically or by refusing a member of the public's request for a video link.

184His decision is consistent with this court's decision in Palkowski. There, this court held that there was no breach of s. 135(1) where no one who wanted to be present in the chambers where the motion was held was excluded: para. 77. Here, the motion judge did not refuse any public request for video access to the hearing. Nor is there any suggestion that the joint hearing was to be heard anywhere other than in an open courtroom.

185On the evidence in the record, the motion judge acted reasonably and within his discretion in not ordering a video link. There is no reason to interfere with his discretionary decision.

Disposition

[186]

Disposition

For these reasons, I would dismiss the appeal and request that, if any party is seeking costs, it advise the panel. [page204]

[187] JURIANSZ J.A. (dissenting in part): --

Reasons of Juriansz J.A.

I have read the carefully prepared and clearly written reasons of LaForme J.A. and find myself in disagreement. I would conclude that this court lacks jurisdiction to determine the appeal because the order of the motion judge is interlocutory.

188As the majority decides that the court does have jurisdiction to determine the appeal, I deal with the other issues. In regard to the mootness issue, I agree with LaForme J.A. that the court should exercise its discretion to decide this appeal. On the merits, I would allow the appeal.

189I rely on LaForme J.A.'s able review of the facts and turn directly to the issues.

I. The Motion Judge's Order is Interlocutory

[190]

The Motion Judge's Order is Interlocutory

Unfortunately, the question whether the order under appeal is final or interlocutory was not addressed until late in the day when raised by the court. However, notwithstanding that the parties have invested much time and resources in preparing and arguing a complex appeal before the court, the court is obliged to remain within its statutory jurisdiction. I am of the view that the order under appeal is an interlocutory order and that this court lacks jurisdiction to hear the appeal.

191In response to the court's request for submissions concerning its jurisdiction to hear this appeal under s. 6(1) (b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the Attorneys General of Ontario and Canada, class counsel, counsel for the intervenors and fund counsel all took the position that the motion judge's order is final.

192Counsel urges the court to find that the order in this case is final because it finally disposed of a substantive jurisdictional challenge to the power of a judge of the Superior Court to hold a hearing outside Ontario. In addition, the Attorney General of Ontario contends that the order finally determined the substantive legal question of whether Ontario law permits the courts of other jurisdictions to hold hearings in Ontario without the authorization of the Ontario legislature.

193Counsel point to case law from this court establishing that orders dismissing challenges to the Superior Court's jurisdiction over a proceeding based on an alleged lack of subject matter or personal jurisdiction are final orders: see, e.g., Manos Foods International Inc. v. Coca-Cola Ltd., 1999 CanLII 3022 (ON CA), [1999] O.J. No. 3623, 180 D.L.R. (4th) 309 (C.A.), at paras. 4-5; Abbott v. Collins (2002), 2002 CanLII 41457 (ON CA), 62 O.R. (3d) 99, [2002] O.J. No. 4058 (C.A.), at paras. 5-6; M.J. Jones Inc. v. Kingsway General Insurance Co. (2003), 2003 CanLII 37356 (ON CA), 68 O.R. (3d) 131, [2003] O.J. No. 4388 (C.A.), at paras. 7-10, [page205] appeal to S.C.C. discontinued December 23, 2004; Smith Estate v. National Money Mart Co. (2008), 92 O.R. (3d) 641, [2008] O.J. No. 4327, 2008 ONCA 746, at para. 30, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 535; Carmen Alfano Family Trust (Trustee of) v. Piersanti, [2012] O.J. No. 2847, 2012 ONCA 442, at paras. 8-12.

194In these cases, the court has held that an order dismissing a motion challenging the subject matter jurisdiction of the Superior Court of Justice is final. Similarly, this court has held that a motion challenging the court's personal jurisdiction over a proceeding is "the equivalent of the assertion of a substantive defence to the action", and hence an order dismissing such a motion is final: see M.J. Jones Inc., at para. 10. In these instances, the order in question resolved an issue that was raised by way of a defence to the action and thus determined a substantive right of the parties to the litigation.

195I do not accept the analogy that counsel draws between the order under appeal and orders disposing of motions challenging the subject matter or territorial jurisdiction of the Superior Court of Justice. 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. Indeed, the order says nothing in relation to the substantive rights of the parties. Rather, it relates to the jurisdiction of a judge of the Superior Court of Justice to sit in a location outside Ontario.

196The test to determine whether an order is final or interlocutory for the purpose of s. 6(1)(b) of the Courts of Justice Act is set out in Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380 (C.A.), at p. 678 O.R.

The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined.

197Justice LaForme formulates a different and novel approach to find that this court has jurisdiction based on s. 6(1)(b) of the Courts of Justice Act. He states it is necessary to depart from the application of the well-established Hendrickson test and to adopt a "somewhat modified approach" because, in this case, the action has been settled and no claims or defences remain to be tried. He suggests that in this case, it is appropriate to characterize the motion for directions as being akin to an application under rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That rule permits an application [page206] seeking the determination of rights that depend on the interpretation of a statute or regulation.

198In making that characterization, he suggests that the motion is like a stand-alone application requiring a determination generally as to whether the supervisory judges could sit together out of province to hear motions arising under the settlement agreement concurrently. He concludes the motion judge's order is final because it determined the merits of the "application" before him by granting the relief that the moving parties sought.

199In my view, LaForme J.A.'s departure from the traditional test and resort to rule 14.05(3)(d) is misplaced.

200For one, the motion for directions was not akin to a free-standing motion to determine whether the court had jurisdiction to sit outside the province to hear hypothetical future motions. Rather, the motion for directions was connected to a specific and pending dispute -- the claims extension motion. As LaForme J.A. acknowledges, at para. 18 of his reasons, the order under appeal arose from a motion for directions "stemming from" previous motions filed by class counsel on August 13, 2012 seeking approval of a proposed protocol that would extend the deadline for filing first claims for benefits from the settlement funds ("claims extension motions"). Since art. 10.01(2) of the settlement agreement requires consensus from the supervisory judges before an order can take effect, class counsel proposed that the supervisory judges sit together in Edmonton, Alberta to hear the claims extension motions in order to facilitate consensus. The Attorney General of Ontario objected to the Ontario supervisory judge sitting outside the territorial boundaries of the Province of Ontario and class counsel brought the motion for directions.

201The motion for directions specifically referred to the claims extension motion. While the questions whether the three judges could sit together out of province are worded generally, the alternative question posed was whether the motion "dated August 13, 2012 returnable before Chief Justice Winkler out of province shall be heard in Toronto on a date to be fixed"?

202In his reasons on the motion for directions, the motion judge describes the claims extension motion in some detail and recounts how it led to the motion for directions. In his reasons, he refers [at para. 44] to it as "[t]he underlying motion before this court". His reasons for concluding the court should exercise its discretion to sit outside the province focus on that "underlying" motion. Chief Justice Bauman, who heard the equivalent proceeding in British Columbia (which was brought by way of an application rather than a motion), referred to the "underlying [page207] application" three times: Endean v. Canadian Red Cross Society, [2013] B.C.J. No. 1304, 2013 BCSC 1074, at paras. 14, 24 and 25, revd [2014] B.C.J. No. 254, 2014 BCCA 61, 59 B.C.L.R. (5th) 113. The British Columbia Court of Appeal also referred to that proceeding as the "underlying application": Endean v. Canadian Red Cross Society, [2014] B.C.J. No. 254, 2014 BCCA 61, 59 B.C.L.R. (5th) 113, at para. 41.

203Thus, I infer that the motion for directions was advanced on the basis that the questions posed relate to the location for the hearing of the claims extension motion and that the motion judge considered the issue in that context. He was not asked to, nor did he consider, the issues that could potentially arise on a motion that involved the hearing of viva voce evidence, such as whether the court could employ its coercive powers while sitting outside its home province.

204Considering the motion for directions in context, it seems to me inescapable that the motion for directions was not akin to a free-standing application. Rather, it was an interlocutory motion and the claims extension motion was the underlying proceeding. 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.

205In this way, this case is distinguishable from Fontaine v. Canada (Attorney General), [2012] B.C.J. No. 1154, 2012 BCSC 839. Fontaine involved an appeal from a motion related to the implementation of a class action settlement. The real matter in dispute was whether counsel had a right of appeal from the chief adjudicator's decision regarding the fairness and reasonableness of legal fees charged. The decision of the motion judge finally determined that question. The equivalent decision in this case would be the decision on the claims extension motion.

206Second, in my view, the relief claimed in the motion for directions could not have been claimed in an application under rule 14.05(3)(d). Rule 14.05(3)(d) permits an application seeking the determination of rights that depend on the interpretation of a statute, regulation or contract. It provides:

14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation [page208] of a statute, order in council, regulation or municipal by-law or resolution[.]

(Emphasis added)

207Justice LaForme states, at para. 49 of his reasons: "Class counsel was seeking declaratory relief involving the determination of a jurisdictional issue that required interpreting the Courts of Justice Act, the Class Proceedings Act, the Rules of Civil Procedure, and the Settlement Agreement." However, raising the interpretation of a statute or contract is not enough to make rule 14.05(3)(d) available. A claim for the determination of rights is required. While the motion for directions determined an important issue disputed by the parties, it did not determine their "rights". It simply determined the court's jurisdiction to sit outside the province to determine their rights.

208Third, the Hendrickson test can just as easily be applied when the action has been resolved. 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. As pointed out above, in this case the "real issue in dispute" between the parties was whether the deadline for filing first claims could be extended. The motion for directions did not resolve that issue.

209I would conclude the motion judge's decision is interlocutory and this court is without jurisdiction to hear the appeal. 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.

210I would quash the appeal. However, as the court has decided it has jurisdiction over the appeal, I proceed to the other issues.

II. Mootness

[211]

Mootness (Juriansz J.A.)

I agree with LaForme J.A. that the court should exercise its discretion to decide this moot appeal even though the court's decision is narrowly based on the facts of the claims extensions motion and will not eliminate the need for another motion in these proceedings. The matter has already been fully argued and considered by the court. The court's decision, though limited, will have application to future motions in these or other proceedings that involve only argument by co-operating counsel on a paper record without any recourse to the court's coercive powers.

III. The Merits of the Appeal

[212]

The Merits of the Appeal (Juriansz J.A.)

Like LaForme J.A., I limit my analysis to facts that were before the motion judge. That motion involved the three [page209] supervisory judges sitting together to adjudicate on a paper record without the need to exercise coercive powers. As LaForme J.A. says, at para. 58, this court should not consider hypothetical situations, which may or may not arise.

213I agree with LaForme J.A. that the motion judge erred in law by failing to consider the statutory right of the public to attend the hearing of the claims extension motion. Section 135 of the Courts of Justice Act 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.

214The legislature has stipulated that "all" court hearings "shall" be open to the public. No matter the extent and nature of the court's jurisdiction, the court must comply with this provision. The court can only exclude the public when there is the possibility of "serious harm or injustice to any person". This exception does not apply in this case.

215Justice LaForme takes the view that s. 135 is satisfied if the claims extension motion held out of province is open to the Ontario public. I take a different view. Given that the Courts of Justice Act is an enactment of the Ontario legislature, I consider it evident that s. 135 applies to the Ontario public. The obvious intent of the Ontario legislature is to guarantee the Ontario public the prima facie right to attend all court hearings of Ontario courts. In my view, the statute does not contemplate that the Ontario public must travel to another province in order to exercise the right to attend the hearing. For the statutory right to be meaningful, it is necessary that the Ontario public be able to attend the hearing at an Ontario courtroom. As Goepel J.A. observed, at para. 69 of Endean, "As a general rule, any member of the [British Columbia] public interested in a hearing should be able to attend in a courtroom in British Columbia to do so." The same rule applies to members of the Ontario public interested in the claims extension motion.

216Consequently, I would conclude the hearing of the Ontario claims extension motion must be held in an Ontario courtroom open to the Ontario public. However, as I explain, that conclusion does not prevent class counsel from effectively achieving the result they desire. [page210]

217At the hearing before the motion judge, the Attorney General of Ontario suggested that the motion could proceed by way video conference under rule 1.08. The proposal envisaged video-linked concurrent hearings of the three supervisory judges sitting in their own provinces. The motion judge rejected this proposal because, in his view, "it would be difficult for the individual judges to ask questions of the numerous counsel, who would be appearing at three sites, without repeated interruptions and breakdowns in the flow of exchange between the bench and counsel": at para. 48. He said, "Experience has shown that video-conferencing technology does not offer the equivalent procedural advantages of holding a hearing before all the supervisory judges in one location": at para. 48. He was entitled to this view, although one might disagree with this assessment of the effectiveness and reliability of the rapidly improving technology available.

218However, the motion judge did not consider an arrangement where the Ontario judge would be at a location outside Ontario with counsel, and both judge and counsel would appear remotely in an Ontario courtroom by way of video conference. Such an arrangement would not interfere with the flow of exchange between bench and counsel that concerned the motion judge.

219In my view, such an arrangement is permitted by rule 1.08, which is reproduced below. There is nothing in the wording of the rule to prevent a judge, as well as counsel or witnesses, from appearing in the courtroom remotely. The rule permits "all or part" of a motion to be conducted by video conference. The word "all" suggests the entire motion could be conducted this way.

220This is the view the British Columbia Court of Appeal took in Endean. The court held, at para. 82: "There is, however, no objection to a judge who is not personally present in [British Columbia] conducting a hearing that takes place in a British Columbia courtroom by telephone, video conference or other communication medium."

221Rule 1.08 is comprehensive and deals with a range of possibilities. The motion can be conducted by video conference on the consent of the parties: rule 1.08(2). If the parties do not consent, the court can direct a video conference on motion or on its own initiative: rule 1.08(3). Moreover, if the facilities provided by the court are thought to be inadequate, the court may permit or even direct a party to make the necessary arrangements: rule 1.08(6). The obligation of making the necessary arrangements would generally not be a burden to the parties in a national class action. [page211]

222Justice LaForme identifies a potential problem with this proposed arrangement. He foresees that some counsel may elect to remain in their home province rather than travelling to the location where the judge is physically present. This raises the question whether the court could order all the parties to appear at the remote location outside the province. This, of course, is even a bigger concern if the motion were returnable outside the province. If class counsel served a motion returnable outside the province, would all opposing counsel be obligated to appear without a court order?

223We need not decide these questions on this appeal. Counsel are unanimous that the underlying motion would not require the use of any of the court's coercive powers. Justice LaForme proceeds on that basis and so do I.

224The other aspect of the process that class counsel wish to achieve is not controversial. It is clear there is no impediment to an Ontario judge sitting together with judges of other courts while hearing a motion. The commercial court in Toronto conducts joint hearings with other courts as a matter of routine: see Nortel Networks Corp. (Re), [2011] O.J. No. 2783, 2011 ONSC 3805 (S.C.J.). Thus, I see no reason why the Ontario supervisory judge, while presiding in an Ontario courtroom remotely by way of video conference, could not hear this motion with the other supervisory judges.

225The combination of rule 1.08 and the court's discretion to hold concurrent hearings with other courts leads me to conclude that class counsel are able to serve their motion returnable in an Ontario courtroom and request the court to direct that the motion be conducted by video conference from a different location and held concurrently with other courts. I agree with the British Columbia Court of Appeal's conclusion in Endean, at para. 83:

[A] judge of the British Columbia Supreme Court has the discretion to sit outside the province with his or her counterparts to hear concurrent applications under the Settlement Agreement. The hearing of the application in the British Columbia proceeding must be conducted in a British Columbia courtroom, although the judge may actually be present from a location outside of the province.

226As it is possible to satisfy the dictates of s. 135 of the Courts of Justice Act by employing rule 1.08, the resort to inherent jurisdiction is unnecessary.

227I would allow the appeal from the decision of the motion judge who erred by concluding an Ontario Superior Court of Justice supervising the 1986-1990 hepatitis C settlement agreement has the discretion to sit with his or her judicial supervisory [page212] counterparts in a location outside Ontario without the necessity of a video conference 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.

228I would decline to entertain the additional question raised in Ontario's amended notice of appeal: whether the courts of other provinces may convene hearings in Ontario? That question was not addressed by the motion judge. The intervening Attorneys General of other jurisdictions take the position that the question should not be answered in the abstract but should be decided on a full factual record. I agree.

229In my view, considering the results, this is not a case for costs.

[230] LAUWERS J.A.: --

Reasons of Lauwers J.A.

I have had the benefit of reading the reasons of both of my colleagues. I agree with LaForme J.A. with respect to all the issues except the application of the open court principle. With respect to that issue, I largely agree with the reasons of Juriansz J.A.

231To be specific, I agree with LaForme J.A. for the reasons he gives that this court has jurisdiction to hear the appeal. Although Juriansz J.A correctly sets out the original basis of the motion before the motion judge as related to the claims extension motions then pending, I do not see that as the context for determining whether the motion judge's order is final or interlocutory. The situation has evolved, as shown by our common conclusion that the appeal should be heard despite its mootness.

232I largely agree with LaForme J.A.'s conclusion that there are no constitutional, common law or statutory impediments to the motion judge's order. In my view, the motion judge's decision to the effect that he had authority, in the exercise of the court's inherent jurisdiction, to sit with the other supervising judges outside of the province of Ontario was correct. The motion judge fell into error, however, in failing to give effect to the open court principle as reflected in s. 135 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

233Justice LaForme and I therefore part company on the proper application of the open court principle. I agree with parts of his decision regarding this principle, particularly paras. 140-42 and 149. I disagree, however, with paras. 145-48, 161-81 and 183-85.

234On the open court issue, I largely agree with the reasoning of Juriansz J.A. In my view, s. 135 of the Courts of Justice Act [page213] requires a "video pipe" between the room or rooms outside Ontario in which the hearing is held and a reasonably accessible Ontario courtroom. 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.

235While I agree with Juriansz J.A. that the motion judge erred in concluding that a video link to a courtroom in Ontario is not required, I do not agree that the application of s. 135 of the Courts of Justice Act and rule 1.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is sufficient to dispose of this appeal, making resort to inherent jurisdiction unnecessary. Justice Juriansz effectively says that the presence of the video link, pursuant to rule 1.08, is enough to deem a hearing to be taking place in Ontario, regardless of the hearing's physical location. This would also appear to be the British Columbia Court of Appeal's position in Endean. In my view, however, a direct approach that recognizes the fact that the court is not actually sitting in Ontario is preferable to the adoption of a legal fiction. I therefore find it necessary to resort to inherent jurisdiction in order to dispose of this appeal.

236I would therefore allow the appeal of the motion judge's order on the narrow basis that he erred in concluding that a video link to a courtroom in Ontario is not required when a hearing is conducted from outside the province, and would require its amendment accordingly.

Appeal allowed.

APPENDIX "A"

Rule 1.08

TELEPHONE AND VIDEO CONFERENCES

Where Available

Appendix A

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). [page214]

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.

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.

Order, No Consent

(3) If the 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.

(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).

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 of the telephone or video conference on the court's ability to make findings, including determinations about the credibility of witnesses;

(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.

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.

Notes

End of Document

Footnotes

1. 1I note that British Columbia class counsel styled the request for directions as a notice of application in the companion case of Endean.