Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220222 DOCKET: M53210 (C69417)

Before: Paciocco J.A. (Motion Judge)

Proceeding under The Class Proceedings Act, 1992, S.O. 1992, Chapter 6

BETWEEN

Glen Johnson, Michael Smith, Timothy Hayne Plaintiffs (Respondents)

and

Her Majesty the Queen in the Right of Ontario Defendant (Respondent)

Counsel: Mirilyn Sharp and Nancy Sarmento Barkhordari, for the appellant Rita Bambers and Lisa Brost, for the respondent Her Majesty the Queen in right of Ontario Chelsea Smith, for the respondents Glen Johnson, Michael Smith and Timothy Hayne Andrew Eckart, for the proposed intervener The Class Action Clinic, University of Windsor, Faculty of Law

Heard: February 18, 2022 by video conference

Paciocco J.A.:

Endorsement

[1] This motion for intervention as a friend of the court by The Class Action Clinic, University of Windsor, Faculty of Law (the “Clinic”) relates to an appeal by Donald Parker of an unsuccessful motion for extension of time to opt out of a class action. That class action has been certified on behalf of persons incarcerated at the Elgin Middlesex Detention Centre between January 1, 2010 and May 18, 2017, against Her Majesty the Queen in the Right of Ontario (“Ontario”), and alleges a failure to provide medical care for inmates.

[2] After the opt-out date for the class action had passed, Mr. Parker filed a lawsuit against Ontario for delay in providing him with medical care while an inmate at the Elgin Middlesex Detention Centre, including during the period encompassed by the class action. In a letter accompanying its notice to defend, Ontario referred to the class action and suggested that Mr. Parker should discontinue his claim or limit it to the period outside of the class action. Mr. Parker has deposed that he was unaware of the class action when he instituted the action and upon learning about it, he brought a motion to extend the time to opt out of the class action. On April 16, 2021, the motion judge refused the motion and on May 10, 2021, ordered costs against Mr. Parker.

[3] Mr. Parker’s appeal of that decision is scheduled to be heard by this court on March 30, 2022 at 12:00 p.m. In this motion the Clinic seeks to intervene as a friend of the court in that appeal, on terms that permit the Clinic to file a factum not exceeding 20 pages in length, and to make oral argument at the hearing of the appeal of no more than 15 minutes. None of the parties oppose this motion but disagree relating to the timing of the delivery of responding facta, and the time for oral argument. Mr. Parker’s consent is contingent on an intervention order not delaying the scheduled appeal. Ontario’s consent is contingent on the Clinic’s intervention being without prejudice to Ontario’s argument that if the adequacy of notice is recognized to be a factor to be considered in applications for extension of time to opt-out, that factor should not be applied during Mr. Parker’s appeal because the adequacy of notice was not an issue before the motion judge, and is not an issue properly raised on appeal. Mr. Parker disputes Ontario’s position, but does not take issue with a neutral recital being made in the intervention order alerting the panel to the fact that this is an open issue. Ontario also seeks a condition prohibiting the Clinic from presenting additional evidence, although the Clinic has disclaimed any intention to do so.

[4] I would grant the Clinic’s motion to intervene, on terms provided below. I am persuaded in the circumstances that the Clinic will be able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., (1990), 74 O.R. (2d) 164 (C.A.), at p. 167; Foster v. West, 2021 ONCA 263, 55 R.F.L. (8th) 270, at para. 10. I make the following findings in that regard.

[5] First, the nature of the case and the issues that arise support this outcome. The legal considerations relevant in determining whether a class member can secure an extension of time to opt out of a class action are not settled and arise in this appeal. The Clinic proposes to offer a framework, derived from a principled analysis of the role of courts as guardians of related rules, that will focus on the factors that a judge should consider when adjudicating a class member’s motion for an extended opt-out. The Clinic will argue that those factors will enable a balanced assessment of the rights of class members against the objective of class actions. These issues transcend the interests of the parties in this public dispute and the proposed submissions do not simply repeat submissions that will be made by the parties.

[6] Second, the Clinic has the experience and expertise to provide useful submissions. It is a non-profit legal service that, under the direction of a legal scholar with recognized expertise in class actions and with the contribution of University of Windsor law students, provides public legal education, assistance in serving the rights and needs of class members, and policy analysis and empirical research on various class action issues.

[7] Third, granting the intervention will not cause injustice to the parties. The parties received advance notice of the Clinic’s intention to seek intervention and have been provided with a draft factum reflecting the essence of the submissions the Clinic proposes to make. As indicated, none of the parties oppose the intervention. Nor will granting this motion delay the impending appeal. The Clinic has undertaken that if granted leave, they will abide by any timelines imposed or ordered by the court. The intervention will not prejudice Ontario’s right to make the argument it chooses relating to adequacy of notice, and the Clinic will not be at liberty to apply for the admission of additional evidence.

[8] In order to facilitate its intervention, the Clinic seeks leave to file a 20-page factum, to be served electronically, and 15 minutes for oral submissions at the hearing. The Clinic provided a draft factum, reserving the right to make further editorial, non-substantive changes. The draft factum is 15 pages, apart from the cover sheets, style of cause, and schedules. It is a concise and clear document that does not appear to require supplementation. The factum will be limited to 15 pages. Given the quality of the factum, I am also satisfied that oral submissions can be made expeditiously and efficiently on behalf of the Clinic at the hearing, in 10 minutes.

[9] The parties to the appeal do not agree on the terms that should accompany the intervention order. Ontario and Mr. Parker have requested leave to file factums in response to the Clinic’s factum. All parties should each be entitled to file a 10-page responding factum. Mr. Parker wishes to file his factum one week after the delivery of Ontario’s responding factum. Ontario wants Mr. Parker to file his responding factum the same date that Ontario does. I agree with Ontario. I see no basis for granting Mr. Parker what would, in effect, be a reply factum.

[10] Mr. Parker seeks an additional 10 minutes of oral argument to respond to arguments made by the intervenor. Ontario seeks the same 10 minutes, as well as an additional 15 minutes of oral argument, on top of the 45 minutes it has already been allocated. In support of its request for an additional 15 minutes Ontario argues that its time allocation was set before its time estimate was provided, and it requires additional time to address affidavit evidence that Mr. Parker intends to present to the appeal panel. I am not persuaded that this additional 15 minutes is required to enable Ontario to make its oral submissions and, given the scheduling of this appeal, it will inconvenience the court.

[11] I therefore grant the Clinic’s motion to intervene on the following terms:

Terms of Intervention

1. The Clinic’s intervention is without prejudice to Ontario’s right to argue that the adequacy of the notice of the class action is not appropriate for consideration in determining Mr. Parker’s appeal.
2. The Clinic shall not bring a motion for the admission of additional evidence or otherwise seek to augment the record.
3. The Clinic shall file a factum not exceeding 15 pages in length.
4. The Clinic’s factum shall consist of an edited version of the draft factum filed in the context of this motion and will not expand on the issues to be addressed by the clinic or alter materially the arguments presented in the draft.
5. The Clinic’s factum is to be served and filed no later than February 25, 2022 and may be served electronically.
6. Mr Parker, and Ontario may file a factum not exceeding 10 pages in length in response to the Clinic’s factum. Each factum is to be served and filed no later than March 16, 2022.
7. The Clinic is permitted to make oral arguments at the hearing of this appeal of no more than 10 minutes.
8. Mr. Parker and Ontario are each granted 10 additional minutes for oral argument.
9. The Clinic will consent to service of all materially electronically.
10. The Clinic shall not seek costs in the intervention, nor will costs be awarded against it.

Released: February 22, 2022 “D.M.P.” “David M. Paciocco J.A.”