Paul Vickery

Class counsel brought an application to assess the financial sufficiency of the Compensation Fund established under the Hepatitis C class action settlement and sought a declaration prioritizing the transfer of surplus funds to the insolvent Past Economic Loss and Dependents Fund (PELD Fund).

The court found that the Compensation Fund was solvent with a small projected surplus, while the PELD Fund remained insolvent.

To prevent inequity for eligible class members who had received nothing from the depleted PELD Fund, the court authorized the transfer of the remaining Compensation Fund surplus to the PELD Fund, with the specific allocation to be determined at a future hearing.

The plaintiffs, former federal inmates with mental health disorders, brought a proposed class action against Canada alleging systemic abuses in federal penitentiaries, including the overuse of solitary confinement and failure to provide adequate mental healthcare.

They alleged breaches of sections 7, 9, and 12 of the Charter.

On consent, the court found that all criteria under section 5(1) of the Class Proceedings Act, 1992 were met and certified the action as a class proceeding.

The Attorney General of Canada and the Joint Committee representing Class Members brought competing applications regarding the allocation of approximately $236 million in excess capital held in the trust fund established by the 1986-1990 Hepatitis C Settlement Agreement.

Canada argued the excess capital should be returned to it, while the Joint Committee sought to allocate the funds to increase benefits for Class Members.

The court dismissed Canada's application, finding that the excess capital allocation provision was intended to provide an opportunity to bridge compensatory gaps for Class Members.

The court approved seven of the Joint Committee's nine recommendations for allocating the funds, including increases to fixed payments and loss of services compensation, to be implemented by way of special distribution.

The Steering Committee, an unincorporated group of physicians and scientists, sought to intervene in a joint hearing of motions concerning the allocation of actuarially unallocated funds from the 1986-1990 Hepatitis C Settlement Agreement.

The Committee proposed allocating funds to its "National HCV Initiative" which aimed to benefit all Canadians with HCV, not just class members.

The court dismissed the intervention request, finding that the Steering Committee was a stranger to both the Settlement Agreement and the underlying litigation, lacking privity of contract or any substantive right to participate in the administration of the settlement.

The Attorney General of Ontario appealed a motion judge's decision that allowed an Ontario supervisory judge to sit outside the province with judges from British Columbia and Quebec to hear motions regarding a national class action settlement, without requiring a video link to an Ontario courtroom.

The Court of Appeal held that while superior courts have the inherent jurisdiction to conduct hearings outside their home province, the open court principle under section 135 of the Courts of Justice Act requires a video link to a reasonably accessible Ontario courtroom.

The appeal was allowed to amend the order to require a video link.

Requests for directions were brought regarding the disposition of documents generated in the Independent Assessment Process established under the Indian Residential Schools Settlement Agreement.

The moving parties sought guidance on whether the documents, which contained highly sensitive narratives of abuse and personal information, should be archived or destroyed.

The court held that the documents were confidential, subject to the implied undertaking and the law of breach of confidence, and were created for a private adjudicative process.

Interpreting the settlement agreement and exercising supervisory jurisdiction over the class action settlement, the court concluded the documents must ultimately be destroyed after a retention period.

During the retention period, claimants must be notified of their option to consent to the transfer of redacted records to the National Research Centre for Truth and Reconciliation.

The plaintiffs brought a motion for directions to determine whether a judge of the Ontario Superior Court of Justice could sit outside Ontario to hear a motion concerning a pan-Canadian class action settlement.

The Attorney General of Ontario objected, arguing the court lacked jurisdiction to hold a hearing outside its territorial boundaries.

The court held that where it has subject-matter and personal jurisdiction, it possesses the inherent jurisdiction to control its own process, which includes the discretion to sit outside the province.

The court found that holding a joint hearing with supervisory judges from British Columbia and Quebec in Alberta was in the interests of justice to promote judicial economy and avoid inconsistent orders.

The Truth and Reconciliation Commission sought directions regarding Canada's obligations under the Indian Residential Schools Settlement Agreement to provide documents archived at Library and Archives Canada (LAC) and documents relating to the TRC's legacy mandate.

Canada moved to strike the TRC's request, arguing the TRC lacked capacity and standing, and moved to strike several affidavits.

The court held that the TRC had capacity to bring the proceedings and declined to strike most of the affidavits.

On the substantive issues, the court ruled that Canada's obligation to provide relevant documents extends to those archived at LAC, but that the TRC's legacy mandate does not include evaluating Canada's policy responses, meaning Canada need not produce documents relating to those responses.

The Government of British Columbia and a class of consumers brought separate actions against tobacco companies regarding the health impacts of smoking and 'light' cigarettes.

The tobacco companies issued third-party notices against the Government of Canada, claiming contribution and indemnity based on negligent misrepresentation, negligent design, failure to warn, and statutory liability.

Canada brought motions to strike the third-party claims for disclosing no reasonable cause of action.

The Supreme Court of Canada allowed Canada's appeals and struck all third-party claims.

The Court held that Canada's alleged representations and design decisions regarding low-tar cigarettes were core government policy decisions immune from tort liability.

Furthermore, Canada did not qualify as a 'manufacturer' or 'supplier' under the relevant provincial statutes.

The federal government amended the Canada Pension Plan to extend survivor benefits to same-sex partners, but limited eligibility to those whose partners died on or after January 1, 1998, and precluded payments for months before July 2000.

A class action challenged these temporal limits.

The Supreme Court of Canada held that the temporal limits infringed section 15(1) of the Charter and were not justified under section 1.

However, the Court denied fully retroactive relief, finding that the prior exclusion of same-sex partners was based on a reasonable understanding of the law before the Court's landmark decision in M. v. H., and that the government acted in good faith.

The Court also held that estates do not have standing to advance section 15(1) claims.

Following a successful appeal that certified the action as a class proceeding, the Court of Appeal issued a costs endorsement.

The appellants were awarded costs throughout on a partial indemnity scale.

The Court fixed the costs for the Divisional Court at $60,000 and for the Court of Appeal at $42,500, payable forthwith by the respondents jointly and severally.

The costs of the initial certification motion were referred back to the motion judge.

The Attorney General of Canada appealed a trial judgment regarding survivor's pensions under the Canada Pension Plan.

The Court of Appeal allowed the appeal in part, settling the formal order to reflect that survivors' estates have no rights under s. 15(1) of the Charter and are not exempt from s. 60(2) of the CPP.

The court also held that s. 72(1) of the CPP does not infringe s. 15(1) of the Charter, and awarded partial indemnity costs to the respondents.

The appellants, members of various First Nations, sought to bring a class proceeding against the federal government and church entities for harms suffered at the Mohawk Institute Residential School between 1922 and 1969.

The motion judge and Divisional Court denied certification.

The Court of Appeal allowed the appeal, finding that the criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were met, including identifiable classes, common issues such as systemic negligence and breach of fiduciary duty, and the preferability of a class action.

The appellants sought damages and restitution from the Government of Canada for the 'head tax' imposed on Chinese immigrants between 1885 and 1923.

They argued the legislation violated section 15 of the Charter, breached customary international law, and resulted in unjust enrichment.

The Court of Appeal upheld the motion judge's decision to strike the claim, finding that the Charter cannot apply retrospectively, customary international law did not invalidate the historical domestic legislation, and the validly enacted statutes provided a juristic reason for any enrichment.