Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220216 DOCKET: M52987 (C70009)

Lauwers, Huscroft and Coroza JJ.A.

BETWEEN

The Fanshawe College of Applied Arts and Technology Plaintiff (Respondent/Moving Party)

and

Hitachi, Ltd., Hitachi Asia, Ltd., Hitachi America, Ltd., Hitachi Displays Ltd, Hitachi Electronic Devices (USA), Shenzhen SEG Hitachi Color Display Devices, Ltd., Hitachi Canada, Ltd., Irico Group Corporation, Irico Group Electronics Co, Ltd., Irico Display Devices Co., Ltd., LG Electronics, Inc., LG Electronics Taiwan Taipei Co. Ltd., LG Electronics USA, Inc., LG Electronics Canada, Panasonic Corporation F/K/A Matsushita Electric Industrial Co. Ltd., Panasonic Corporation of North America, Panasonic Canada Inc., Koninklijke Philips Electronics N.V., Philips Electronics Industries (Taiwan) Ltd., Philips Da Amazonia Industria Electronica LTDA, Philips Electronics North America Corporation, Philips Electronics Ltd., Samsung Electronics Co. Ltd., Samsung Electronics America Inc., Samsung Electronics Canada Inc., Samsung SDI Co., Ltd. (F/K/A Samsung Display Device Co.), Samsung SDI Brasil LTDA, Samsung SDI America, Inc., Samsung SDI Mexico S.A. De C.V., Shenzhen Samsung SDI Co. Ltd., Tianjin Samsung SDI Co., Ltd., Toshiba Corporation, Toshiba America Electronic Components Inc., Toshiba America Information Systems Inc., Toshiba of Canada Limited, Beijing Matsushita Color CRT Company, Ltd., Samtel Color, Ltd and MT Picture Display Co., Ltd Defendants

Bridget Moran, Linda Visser and Katherine Shapiro, for the moving party Brett Harrison, Paola Ramirez and Anthony Labib, for the responding party Class Action Capital Recovery LLC

Heard: January 25, 2022 by video conference

Lauwers J.A.:

I. OVERVIEW

[1] This is a motion to quash in the context of a class action for price-fixing related to the sale of cathode ray tube (“CRT”) products by various electronics manufacturers. The action is currently in the settlement administration phase. A court-approved Distribution Protocol is in place, which sets out a claims process for distributing settlement funds to class members. The Protocol provides claimants with a right of appeal against the decisions of the Claims Administrator to the Superior Court or its designate. However, the Protocol purports to prevent any further appeals.

[2] Class Action Capital Recovery LLC (“CAC”) acted as a third-party filer for some claimants, but it is not itself a party to the class action. CAC seeks to appeal a decision of the motion judge relating to the claim reconsideration process.

[3] Class Counsel move to quash the appeal on several bases, focusing on the grounds that the limit on further appeals in the Protocol binds this court to quash the appeal under s. 134(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and that CAC does not have standing to bring an appeal.

[4] I would dismiss the motion to quash. This court has jurisdiction to hear the appeal from the motion judge’s order. CAC has standing to appeal, and its appeal is not time-barred.

II. The Background

[5] After a succession of litigation battles, the claims were settled and the settlements were approved by the Superior Court of Justice under s. 27.1 of the Class Proceedings Act, 1992, S.O. 1992, c. 6. RicePoint Administration Inc. was appointed as the Claims Administrator.

[6] On April 20, 2018, the motion judge approved the Distribution Protocol and Notice of Claims Process for the settlement funds. As he described in his endorsement of January 6, 2021, the Protocol requires claimants to submit Claims Forms detailing their CRT product purchases. They were permitted to use a third-party filer for this purpose. A claimant was not required to provide supporting documentation for a claim unless selected by the Claims Administrator for audit.

[7] The Claims Administrator was required, under para. 43 of the Protocol, to identify deficiencies in a claim and give the claimant a chance to address them. The Claims Administrator could then deny all or part of the claim. The Protocol gave claimants, under paras. 48-55, a limited right of appeal to the Superior Court or its designate for claims over $100,000. Paragraph 55 of the Protocol provides that the decision on appeal is “final and binding and shall not be subject to any further appeal or review whatsoever.”

[8] CAC filed claims on behalf of many large, institutional claimants. The Claims Administrator decided to select all claims filed by third parties for audit. Because of the time that had elapsed since the claimants’ purchases of the CRT products, the operation of the institutional claimants’ document retention policies meant that many were unable to produce documentary proof of purchase. The Claims Administrator denied the claims, using the same generic notice for each claimant whose claim was rejected in its entirety: “We are rejecting your claim because you failed to provide adequate proof of purchase.”

[9] CAC and the other third-party filers whose claims were denied on that basis appealed under the Protocol by way of a motion for directions to the Superior Court. Acting in his capacity to hear appeals under the Protocol, the motion judge allowed the appeals in part on January 6, 2021. He held that the Claims Administrator had interpreted “documentary proof” too narrowly and had not given sufficient reasons for denying the claims. He remitted to the Claims Administrator every claim in which a declaration attesting to the purchase of CRT products and supporting documentation were submitted, provided that these documents were submitted on time or that the filers should have been given additional time to submit such documentation. The other appeals were dismissed.

[10] CAC and the Claims Administrator then argued about the process to be followed for assessing the remitted claims. The Claims Administrator took the position that it was only required to reconsider the claims on the basis of the documentation in accordance with the motion judge’s directions, and then send out revised decision notices. However, CAC maintained that the January 6th order required the Claims Administrator to restart the deficiency process as set out at para. 43 of the Protocol, that is, by identifying deficiencies in the submitted materials and then giving the claimants a chance to correct the deficiencies.

[11] Both the Claims Administrator and CAC wrote to the motion judge seeking guidance. The trial coordinator responded by email on May 11, 2021 stating:

Justice Grace believes his January 6, 2021 reasons are clear. Paragraph 75 provides that the allowed appeals are remitted “for reconsideration and decision in accordance with paras. 45 through 47 of the Distribution Protocol…’ Para. 75 does not refer to para. 43. That should resolve the dispute concerning deficiency notices.

[12] On June 25, 2021, the Claims Administrator sent reconsideration notices for 115 of the claims submitted by CAC that had previously been denied in full. Of these, 55 claims were partially approved and 60 were rejected. CAC brought another motion for directions on the basis that the Claims Administrator had failed to follow the deficiency process ordered by the motion judge.

[13] On September 21, 2021, the motion judge provided a brief endorsement declining to revisit the issue. He found that there was no evidence that the Claims Administrator had not acted in accordance with his January 6th instructions, which spoke for themselves.

[14] CAC filed its notice of appeal to this court on October 21, 2021. Class Counsel now seeks to quash CAC’s appeal.

III. The Issues

[15] The issues raised on this motion to quash are:

1. Does this court have jurisdiction to hear the appeal?
2. Does CAC have standing?
3. Is the appeal out of time?
4. Is the appeal a collateral attack on the January 6, 2021 order?

I address each issue in turn.

IV. Analysis

(1) Does this court have jurisdiction to hear the appeal?

[16] When he took up his responsibility under the Protocol, the motion judge did not cease acting in his capacity as a Superior Court judge. This is the plain ratio of this court’s decision in Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471, 111 O.R. (3d) 461, which involved an appeal from a decision of Winkler C.J.O. sitting in his capacity as an administrative judge under the Court Administration Protocol for the Indian Residential Schools Settlement Agreement. This court dismissed the respondent’s motion to quash the appeal because the Settlement Agreement was incorporated into a series of court orders, and the orders implementing the Settlement Agreement stated that the courts would supervise its implementation. The administrative judge’s directions finally determined the issue in question (i.e., whether legal fee review decisions of the Chief Adjudicator were subject to any further appeal or review). His directions were incorporated as a final order of a judge of the Superior Court of Justice. Therefore, his decision was appealable to the Court of Appeal under s. 6(1)(b) of the Courts of Justice Act.

[17] The legislature knows how to oust or modify this court’s jurisdiction in cognate areas. I point to two examples. The first is the Arbitration Act, 1991, S.O. 1991, c. 17, which permits rights of appeal to the courts to be limited by an arbitration agreement under s. 45. The second is the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 11 (“ICAA”) and arts. 16 and 34 of the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on June 21, 1985, as amended on July 7, 2006, which has the force of law in Ontario under s. 5 of the ICAA, subject to any modifications set out in the Act. This court’s usual jurisdiction to hear appeals from orders of Superior Court judges can only be displaced by virtue of an agreement if doing so is permitted by statute.

[18] There is no language in the Class Proceedings Act or in any other Ontario statute ousting this court’s jurisdiction. Paragraph 55 of the Protocol is not sufficient, on its own, to oust the appellate jurisdiction this court would otherwise have under the Courts of Justice Act. This fact might counsel caution in the future design of class action distribution protocols.

[19] The consequence is that the appeal rights under s. 6(1) of the Courts of Justice Act presumptively apply. Section 6(1) provides:

An appeal lies to the Court of Appeal from,

(b) a final order of a judge of the Superior Court of Justice, except,

(i) an order referred to in clause 19(1)(a) or (a.1), or

(ii) an order from which an appeal lies to the Divisional Court under another Act;

[20] Does s. 6(1) direct the appeal under the Protocol to this court or, under s. 6(1)(b)(ii), to the Divisional Court by reason of s. 30 of the Class Proceedings Act? The Protocol is a settlement and is not a decision on the merits to which s. 24 (aggregate damages) or s. 25 (individual issues) would apply to lead to an appeal governed by s. 30. Section 30 is silent on the appellate route from an order made on a motion for directions brought under the terms of a court-approved settlement agreement: Parsons v. Ontario, 2015 ONCA 158, 125 O.R. (3d) 168, at para. 39, rev’d on other grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. This court has held that “[w]here s. 30 does not specifically address the appeal route for a particular type of order or judgment, s. 6(1)(b) of the Courts of Justice Act will govern whether an appeal lies to this court or to Divisional Court”: Bancroft-Snell v. Visa Canada Corporation, 2019 ONCA 822, 148 O.R. (3d) 139, at para. 16, leave to appeal refused, [2019] S.C.C.A. No. 500 (Wal-Mart Canada Corp.) and [2019] S.C.C.A. No. 501 (Home Depot of Canada Inc.). Because s. 30 does not specifically address the appeal route for this type of order, appeals to this court are governed by s. 6(1) of the Courts of Justice Act. Under s. 6(1)(b), CAC’s appeal lies to this court.

(2) Does CAC have standing?

[21] Class Counsel argue that because CAC is not a party, this court’s decisions in Dabbs v. Sun Life Assurance Co. of Canada (1998), 41 O.R. (3d) 97 (C.A.), leave to appeal refused, [1998] S.C.C.A. No. 372 and Bancroft-Snell deprive it of standing. In Bancroft-Snell, this court affirmed Dabbs and held that class members’ appeal rights under the Class Proceedings Act are not supplemented by the general appeal rights under s. 6(1)(b) of the Courts of Justice Act.

[22] In response, CAC submits that Bancroft-Snell is distinguishable. It argues that, unlike the situation in Bancroft-Snell, it is not seeking to appeal an order approving a settlement agreement, but is instead seeking to uphold the deficiency process in the Protocol. CAC notes that class members did not object to the Protocol because it contained the deficiency process. In addition, CAC emphasizes that class members have a direct interest in the subject matter of the proceeding, and that the technical distinction in the Class Proceedings Act between class members and parties should not be used to “part way with the rights of class members.”

[23] It is too late for Class Counsel to credibly dispute CAC’s standing to advance the interests of its claimant clients, because CAC represented them without objection before the motion judge. CAC must be understood as having the status of an agent for its clients in this phase of the class proceeding. A more formalistic approach would only undermine the goals of class proceedings by, for example, requiring each claimant inefficiently and expensively to advance its own appeal.

(3) Is the appeal out of time?

[24] Rule 61.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires an appellant to serve a notice of appeal within 30 days of the order appealed from and then to file it within an additional 10 days. However, under r. 3.02, the court can extend the time for serving and filing a notice of appeal. On a motion for an extension of time, the overarching question is whether the justice of the case requires that an extension be given. Relevant considerations include: (a) whether the moving party formed a bona fide intention to appeal within the relevant time period; (b) the length of, and explanation for, the delay; (c) any prejudice to the responding parties; and (d) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.

[25] When does the appeal period start to run? In Fontaine v. Canada (Attorney General), 2012 ONCA 206, 289 O.A.C. 190, Watt J.A. stated, at para. 57: “As a general rule, the time period within which a notice of appeal is to be delivered begins to run on the date the order under appeal is pronounced by oral or written reasons”. He added a caveat that where clarification is required because the judgment is uncertain on an issue, “the time runs from entry, not pronouncement”: at para. 59, citing Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.).

[26] An appeal lies from a judgment or order, not from the reasons for it: Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 39, at para. 53. But where the precise import of the reasons is not clear until the judgment is settled, it is reasonable to treat that date as the date from which the appeal period begins to run. Further, in determining whether to quash an appeal on the basis that it is out of time, a panel can consider the factors that inform a decision to extend time: see Gefen v. Gaertner, 2021 ONCA 631, at para. 11.

[27] In considering the application of these principles, I observe that no formal order was ever entered from the January 6, 2021 decision. Perhaps that is because the parties could not agree on the terms. The letters that the parties sent to the motion judge seeking to clarify the meaning of the January 6th decision demonstrate their persistent disagreement that was only resolved on September 21, 2021, when the motion judge’s subsequent endorsement was released.

[28] As noted above, after the Claims Administrator adjusted the claims, CAC appealed again on the basis that the Claims Administrator had failed to follow the deficiency process ordered by the motion judge. That motion was heard on September 21, 2021. The motion judge determined that his previous instructions in the January 6th reasons had been clear and that the Claims Administrator had complied with them.

[29] At one level, the determination of when time began to run for appeal purposes depends on whether it was clear from para. 75 of the January 6th reasons that the full deficiency process was not to be followed for the remitted claims. That paragraph states: “The allowed appeals are remitted to RicePoint for reconsideration and decision in accordance with paras. 45 through 47 of the Distribution Protocol and these reasons.” As noted above, the clarifying email sent by the trial coordinator on behalf of the motion judge stated: “Para. 75 does not refer to para. 43. That should resolve the dispute concerning deficiency notices.”

[30] Paragraph 43 of the Protocol, to which the motion judge did not refer in his January 6th reasons, provides:

If the Claims Administrator finds that deficiencies exist in a Claim Form or other required information, the Claims Administrator shall notify the Settlement Class Member, by email or regular mail, of the deficiencies. The Claims Administrator shall allow the Settlement Class Member thirty (30) days from the date of such notice to correct the deficiencies. If the deficiencies are not corrected within the thirty (30) day period, the Claims Administrator may reject the Claim Form. The Online Claim Portal shall be designed so as to minimize the possibility of deficient Claim Forms.

[31] The appeal will be argued so I am reluctant to weigh in, but I am not surprised that CAC viewed the appeal judge’s trenchant criticism of the Class Administrator’s process in the January 6th reasons at paras. 55-57 and 68-75 as implying that the Claims Administrator would conduct a broader reconsideration of the claims than the appeal judge stipulated in the final endorsement.

[32] Given the continued dispute about the meaning of the January 6th decision, I view the date on which the judgment exhibited sufficient certainty for appeal purposes as September 21, 2021, when the motion judge’s subsequent endorsement was released. As a result, the appeal was commenced in time.

[33] Even if I am mistaken, the court has the discretion to extend time based on the Enbridge factors. CAC was obviously forceful in arguing its position throughout. The delay is fully explained. There is no prejudice beyond a delay in disbursing the settlement funds. The appeal is not frivolous and the justice of the case warrants it being argued.

(4) Is the appeal a collateral attack on the January 6, 2021 order?

[34] I agree with CAC that a collateral attack argument is a defence, not a reason to quash an appeal for want of jurisdiction: Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, 101 O.R. (3d) 321, at para. 74, leave to appeal requested but appeal discontinued, [2010] S.C.C.A. No. 397. This issue must be left to the panel hearing the appeal.

V. Disposition

[35] I would dismiss the motion to quash with costs payable to CAC. If the parties are unable to agree on costs, then CAC may file a written submission no more than three pages in length within ten days of the date of the release of these reasons; Class Counsel may file a written submission no more than three pages in length within ten days of the date CAC’s submission is due.

[36] Class Counsel advised that this appeal is preventing the disbursement of settlement funds because any remaining funds will be distributed pro rata, so all entitlements must be finalized before the distribution can occur. Accepting this submission, I would direct that the appeal be heard on an expedited basis.

Released: February 16, 2022 “P.L.” “P. Lauwers J.A.” “I agree. Grant Huscroft J.A.” “I agree. S. Coroza J.A.”