CITATION: Parsons v. The Canadian Red Cross Society, 2013 ONSC 3053
DATE: 20130524
COURT FILE NO.: 98-CV-141369
SUPERIOR COURT OF JUSTICE
Winkler C.J.O.
BETWEEN:
Dianna Louise Parsons, Michael Herbert Cruickshanks, David Tull, Martin Henry Griffen, Anna Kardish, Elsie Kotyk, Executrix of the Estate of Harry Kotyk, deceased and Elsie Kotyk, personally
Plaintiffs
and
The Canadian Red Cross Society, Her Majesty the Queen in Right of Ontario and the Attorney General of Canada
Defendants
and
Her Majesty the Queen in the Right of the Province of Alberta, Her Majesty the Queen in the Right of the Province of Saskatchewan, Her Majesty the Queen in the Right of the Province of Manitoba, Her Majesty the Queen in the Right of the Province of New Brunswick, Her Majesty the Queen in the Right of the Province of Prince Edward Island, Her Majesty the Queen in the Right of the Province of Nova Scotia, Her Majesty the Queen in the Right of the Province of Newfoundland, the Government of the Northwest Territories, the Government of Nunavut and the Government of the Yukon Territory
Interveners
Proceeding under the Class Proceedings Act, 1992
COURT FILE NO. 98-CV-146405
AND BETWEEN:
James Kreppner, Barry Isaac, Norman Landry, as Executor of the Estate of the late Serge Landry, Peter Felsing, Donald Milligan, Allan Gruhlke, Jim Love and Pauline Fournier as Executrix of the Estate of the late Pierre Fournier
Plaintiffs
and
The Canadian Red Cross Society, the Attorney General of Canada and Her Majesty the Queen in Right of Ontario
Defendants
and
Her Majesty the Queen in the Right of the Province of Alberta, Her Majesty the Queen in the Right of the Province of Saskatchewan, Her Majesty the Queen in the Right of the Province of Manitoba, Her Majesty the Queen in the Right of the Province of New Brunswick, Her Majesty the Queen in the Right of the Province of Prince Edward Island, Her Majesty the Queen in the Right of the Province of Nova Scotia, Her Majesty the Queen in the Right of the Province of Newfoundland, the Government of the Northwest Territories, the Government of Nunavut and the Government of the Yukon Territory
Interveners
Proceeding under the Class Proceedings Act, 1992
Harvey T. Strosberg, Q.C., and J.J. Camp, Q.C., for the plaintiffs/moving parties
M. Michele Smith and Joshua Hunter, for the responding party Attorney General of Ontario
Paul B. Vickery and Sheila J. Hepworth, for the responding party Attorney General of Canada
John E. Callaghan, for the responding party Fund Counsel for Ontario
H. Michael Rosenberg, for the interveners
Heard: March 20, 2013
Winkler C.J.O.
A. OVERVIEW
[1] This motion for directions raises the question whether a judge of the Superior Court of Ontario may sit in another province to hear a motion concerning a pan-Canadian settlement agreement of related class actions certified in Ontario, British Columbia and Québec. The class actions were brought on behalf of people in all provinces and territories of Canada who were infected by Hepatitis C through the Canadian blood supply. The answer to this question affects the ability of three supervisory judges to sit together in one location to adjudicate common matters over which they have personal and subject-matter jurisdiction.
[2] The Attorney General of Ontario (“AG Ontario”) contends that a judge of Ontario’s Superior Court of Justice lacks jurisdiction to hold a hearing concerning the settlement agreement in a location outside Ontario. AG Ontario does not take issue with the Superior Court’s personal and subject-matter jurisdiction over the proceeding. Nor is it raising a jurisdictional issue concerning the certification of an extra-provincial class; indeed, AG Ontario consented to the certification order. AG Ontario’s jurisdictional objection is solely concerned with the physical location of the hearing.
[3] AG Ontario submits that if the court were to hold a hearing outside Ontario, any order the court made would be a nullity and could be set aside for want of jurisdiction on an appeal or in collateral proceedings. The position taken by AG Ontario thus requires this court to make a preliminary determination concerning its ability to conduct a hearing outside Ontario.
[4] I conclude that a judge of the Superior Court of Justice in Ontario may preside over a hearing that is conducted outside Ontario where the Ontario court has personal and subject-matter jurisdiction over the parties and the issues in the proceeding. This jurisdiction is not lost simply because the court presides over a motion in a location that is outside the court’s regular territorial limits. Rather, the court’s inherent jurisdiction to control its own process empowers the court to consider if it should exercise its discretion to hold a hearing outside its home province having regard to whether sitting outside the court’s home province promotes the interests of justice in the particular case. I would exercise this discretion in the present case. My reasons follow.
B. FACTUAL BACKGROUND
[5] Concurrent class proceedings were certified in Ontario, British Columbia and Québec on behalf of individuals who were infected with Hepatitis C by the Canadian blood supply between January 1, 1986 and July 1, 1990. The British Columbia and Québec class actions included residents of those provinces who received Hepatitis-C positive blood or blood products in those provinces between January 1, 1986 and July 1, 1990. The Ontario class actions included all other persons who received Hepatitis-C positive blood or blood products in Canada during that period.
[6] The certified class proceedings culminated in a national settlement agreement dated June 15, 1999, whereby the Governments of Canada, all ten provinces and all three territories, agreed to be bound by its terms upon the agreement receiving court approval. The governments of the provinces and territories other than British Columbia and Québec moved to be included as defendants in the Ontario actions if the settlement agreement were approved by the Ontario court.
[7] Settlement approval motions were brought before the supervisory judges of the class actions in Ontario, British Columbia and Québec. In 1999, each of the courts approved the settlement agreement: see Parsons v. Canadian Red Cross Society (1999), 40 C.P.C. (4th)151 (S.C.) (approved on September 22, 1999 by Winkler J.); Endean v. Canadian Red Cross Society (1999), 1999 6357 (BC SC), 68 B.C.L.R. (3d) 350 (S.C.) (approved on October 1, 1999 by Smith J.); Honhon c. Canada (Procureur général), 1999 11813 (QC CS), [1999] J.Q. no 4370 (S.C.) (approved on September 21, 1999 by Morneau J.).
[8] The settlement agreement established a fund of $1.118 billion from which eligible claimants may receive compensation depending on the severity of their illness. Class members across Canada received notice of the settlement and a small number of people chose to opt out. Over 13,000 class members from every province and territory within Canada have participated in and benefitted from the national settlement. Approximately 5,200 of the class members are residents of Ontario. As well there are over 3,200 class members who are residents of provinces and territories other than British Columbia and Québec who are members of the Ontario class and fall under the jurisdiction of the Ontario court.
[9] Pursuant to the settlement agreement, a court-appointed Administrator is charged with the role of reviewing and deciding claims and giving notice of its decision to claimants. Claimants have the right to refer the Administrator’s decision in respect of a claim to a court-appointed arbitrator or referee. These references and arbitrations are heard in the province or territory where the claimant resides. When a claimant proceeds by way of arbitration, there is no appeal. When a claimant proceeds by way of a reference, the claimant may seek a confirmation review. This review is conducted by the court having jurisdiction over the class action in which the claimant is a class member. The Ontario court has jurisdiction over reviews of referee decisions sought by members of the Ontario class, whether or not they reside in Ontario.
[10] The settlement agreement assigns a supervisory role over implementing and enforcing its provisions to the Superior Courts of British Columbia, Ontario and Québec. More specifically, the settlement agreement provides:
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 [for distributing the settlement funds] and the Funding Agreement.
The settlement agreement specifies that any such judgment or order of the courts takes effect “only upon the date when the last judgment or order of the Courts becomes final without any material differences in the three judgments or orders.”
[11] The settlement agreement empowered the courts to appoint a Joint Committee, which is charged with the duty of establishing protocols (which must be approved by the courts) for the Administrator, Referees and Arbitrators in administering the agreement. The Joint Committee consists of four counsel who represented the class action plaintiffs in Ontario, British Columbia and Québec.
[12] On August 13, 2012, class counsel filed motions before the supervisory judges from Ontario, British Columbia and Québec for approval of a proposed protocol extending the June 30, 2010 deadline in the settlement agreement for filing first claims for benefits from the settlement funds. These motions were opposed by all defendants.
[13] Class counsel, in consultation with the court monitor, proposed that the most efficient and effective procedure for adjudicating the motions would be to have the three supervisory judges sit together in one location so that they would hear the same submissions and be better positioned to reach concurrent orders without material differences, as required by the settlement agreement. The location of Edmonton, Alberta was chosen for purposes of efficiency and cost effectiveness. The three supervisory judges, Chief Justices of their respective courts,[^1] were scheduled to be in Edmonton for the week of September 17, 2012 for a meeting of the Canadian Judicial Council. The motion was thus made returnable on September 18, 2012, in Edmonton.
[14] Prior to the hearing, AG Ontario objected to the Ontario supervisory judge sitting outside the territorial boundaries of the province of Ontario. AG Ontario threatened to bring a motion challenging the court’s jurisdiction. Accordingly, the motion was adjourned.
[15] The supervisory judges understood that AG Ontario was prepared to file a formal motion raising this jurisdictional issue. However, AG Ontario failed to proceed with such a motion. As a result, members of the Joint Committee responded by bringing this motion for directions. Class counsel deemed it was important to have the jurisdictional question resolved because it will be a recurring issue in implementing the settlement agreement. Similar motions for directions were brought by class counsel in British Columbia and Québec.
C. positions of the parties
[16] AG Ontario contends that the Superior Court of Justice has no jurisdiction, either at common law or by statute, to hear a contested motion while sitting outside Ontario. AG Ontario submits an Ontario court should not sit outside Ontario in the absence of a comprehensive legislative scheme allowing it to do so. AG Ontario instead proposes that a joint hearing be held by way of videoconference, with the Ontario, British Columbia and Québec courts holding hearings in their respective provinces.
[17] In contrast, Ontario Class Counsel, the Attorney General of Canada, and Fund Counsel for Ontario agree that a judge of the Superior Court of Justice of this province can render an enforceable judgment concerning the settlement agreement even if sitting outside the judge’s ordinary territorial limits.
[18] The interveners – the Attorneys General of the provinces other than Ontario, British Columbia and Québec, and the territorial governments – took no position on the motion.
D. ANALYSIS
(1) Nature of the jurisdictional issue
[19] Jurisdiction is a term that encompasses several concepts. As noted in R. v. Pilarinos, 2001 BCSC 1690, [2001] B.C.T.C. 1690, at para. 19: “Jurisdiction can be, amongst other things, exclusive, concurrent, original, in personam, in rem, and territorial.”
[20] The only issue raised by AG Ontario concerns the judge’s physical location when hearing a matter. AG Ontario does not suggest that sitting outside Ontario would infringe upon the subject matter or personal jurisdiction of the Alberta Court of Queen’s Bench. Rather, the parties accept that the Superior Court of Justice in Ontario has jurisdiction over the subject matter in the proceeding and has personal jurisdiction over the parties.
(2) Is there any constitutional or statutory prohibition preventing the Superior Court of Justice from holding a hearing outside Ontario?
(a) Historical jurisdiction of the English courts to sit outside England
[21] AG Ontario’s primary argument is that because, at common law, English courts could not hold hearings outside England, and because there is no explicit statutory provision authorizing Ontario superior courts to hold hearings outside Ontario, the Superior Court cannot hold hearings outside Ontario. In support of this position, AG Ontario cites s. 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that the Superior Court of Justice possesses all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.
[22] AG Ontario made detailed submissions concerning the historical common law restrictions preventing English courts from sitting outside England going back to the Magna Carta. In my view, the restrictions that exist in England are not determinative of the jurisdiction issue in the present case.
[23] The Supreme Court of Canada’s decision in Morguard Investments v. Savoie, 1990 29 (SCC), [1990] 3 S.C.R. 1077, is, by analogy, instructive in this case. Writing for the unanimous court, La Forest J. observed, at p. 1098, that there is no comparison between the interprovincial relationships of today and the relationships between foreign countries in the 19th century. La Forest J. spoke of the need to shape common law rules in a way that accommodates modern commercial and societal realities:
The world has changed since the above rules [concerning when English courts will enforce a foreign judgment] were developed in 19th century England. Modern means of travel and communications have made many of these 19th century concerns appear parochial. The business community operates in a world economy and we correctly speak of a world community even in the face of decentralized political and legal power. Accommodating the flow of wealth, skills and people across state lines has now become imperative. Under these circumstances, our approach to the recognition and enforcement of foreign judgments would appear ripe for reappraisal.
[24] Moreover, the restrictive English common law rules regarding the recognition and enforcement of foreign judgments “fly in the face of the obvious intention of the Constitution to create a single country”: Morguard, at p. 1099. Unlike England, this country’s constitutional underpinnings are intended to ensure the mobility of Canadians across provincial lines. La Forest J. elaborated on why Canadian constitutional and sub-constitutional arrangements and practices warrant shaping the rules of comity between provinces to conform to the federal structure of the Constitution, at pp. 1099-1100:
The Canadian judicial structure is so arranged that any concerns about differential quality of justice among the provinces can have no real foundation. All superior court judges – who also have superintending control over other provincial courts and tribunals – are appointed and paid by the federal authorities. … Any danger resulting from unfair procedure is further avoided by sub-constitutional factors, such as for example the fact that Canadian lawyers adhere to the same code of ethics throughout Canada.
[25] 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.
(b) Is there any domestic authority precluding Ontario courts from holding hearings outside Ontario?
[26] AG Ontario further submits that Ontario courts historically could not hold hearings outside Ontario. However, it did not point to any constitutional or statutory limitation on the geographical location where the provincial superior courts may sit in order to adjudicate on the issues raised in a proceeding.
[27] Professor Janet Walker observes in her article, “Are National Class Actions Constitutional? – A Reply to Hogg and McKee” (2010) 48 Osgoode Hall L.J. 95, at pp. 105-108, that there is no provision in the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3., that addresses or could be said to confine the superior courts’ jurisdiction to adjudicate within territorial boundaries. Equally, there is no provision of the Constitution that speaks to the physical location where the superior courts must sit.
[28] As for the alleged statutory limitation on the location where the Superior Court of Justice may conduct hearings, Ontario notes that the various incarnations of the Judicature Act from 1881 until 1984 permitted judges of the High Court of Justice to “sit and act, at any time and at any place, for the transaction of any part of the business of the courts” (emphasis added). I fail to see how this wording can be taken as revealing a legislative intention to limit the court’s ability to hold hearings outside Ontario.
[29] The only common law authority referred to by AG Ontario that even speaks to the issue of a superior court judge sitting outside provincial boundaries is Ewachniuk v. Law Society of British Columbia (1998), 1998 6469 (BC CA), 156 D.L.R. (4th) 1 (C.A.). However, the question of the ability of a superior court judge to sit outside the province was not directly before the court in Ewachniuk. Rather, the central question 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.
[30] A majority of the British Columbia Court of Appeal (per Rowles J.A., Finch J.A. concurring in the result, Goldie J.A. dissenting) held that a discipline panel does not have statutory authority to sit outside British Columbia. In reaching this conclusion, Rowles J.A. stated, at para. 31, that “the jurisdiction of the superior courts of the provinces is determined internally by the Constitution and externally by the boundaries of the provinces” and that superior courts of the provinces “do not sit outside their boundaries.” However, this particular observation was not necessary for the decision and was not mentioned in the concurring reasons.
[31] In Ewachniuk, the British Columbia Court of Appeal had to determine the powers of a statutory tribunal, the authority of which is limited by statute. 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. In any event, Rowles J.A. was not 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.
[32] Thus, AG Ontario was unable to provide any 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. I turn now to the common law authority, which, in my view, 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.
(c) Jurisdiction of the superior courts to fully control their own process
[33] The Supreme Court of Canada in MacMillan Bloedel Ltd. v. Simpson, 1995 57 (SCC), [1995] 4 S.C.R. 725, confirmed, at para. 15, that the inherent jurisdiction of the superior courts includes the power of the courts to fully control their own process:
The superior courts have a core or inherent jurisdiction which is integral to their operations. The jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the Constitution. Without this core jurisdiction, s. 96 could not be said either to ensure uniformity in the judicial system throughout the country or to protect the independence of the judiciary. Furthermore, the power of superior courts to fully control their own process is, in our system where the superior court of general jurisdiction is central, essential to the maintenance of the rule of law itself.
[34] Lamer C.J., writing for the majority, referred, at para. 33, to the article by Keith Mason, “The Inherent Jurisdiction of the Court” (1983), 57 A.L.J. 449, in which he identified the following four functions of inherent jurisdiction: (i) ensuring convenience and fairness in legal proceedings; (ii) preventing steps being taken that would render judicial proceedings inefficacious; (iii) preventing abuse of process; and (iv) acting in aid of superior courts and in aid or control of inferior courts and tribunals.
[35] There is no need for comprehensive legislation empowering a judge of the superior court to implement procedures that are intended to address these four functions of inherent jurisdiction. Indeed, the courts are obliged to fill the void by exercising their inherent power to settle the rules of practice and procedure as to disputes. McLachlin C.J., writing for a unanimous Supreme Court in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 34, spoke of the superior courts’ inherent power to fill any procedural void that has been left by the legislature:
Absent 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. However desirable comprehensive legislation on class action practice may be, if such legislation has not been enacted, the courts must determine the availability of the class action and the mechanics of class action practice. [Citations omitted.]
[36] McLachlin C.J. was prepared to read into the rules of civil procedure of a province that had no class proceedings legislation what amounted in essence to a class proceeding provision. The Supreme Court filled a void where the nature of the dispute before the court required a process permitting aggregate litigation. It seems to me that, in doing so, the Supreme Court provided guidance in the present context.
[37] In fact, the courts have previously filled the procedural void left by the legislature when it comes to administering the settlement of an inter-provincial class action. In Fontaine v. Canada (Attorney General), the judges of the superior courts of Ontario, British Columbia, Québec, Alberta and Saskatchewan sat together in Calgary, Alberta in March 2007 to hear a motion for approval concerning the Indian Residential Schools class action settlement. The superior courts of Manitoba, Yukon, Northwest Territories and Nunavut were linked to the Alberta courtroom by telephone conference.
[38] The inherent jurisdiction of the Superior Court of Justice to fashion procedures to facilitate the efficient and effective resolution of issues encountered in implementing a pan-Canadian settlement agreement is reinforced by the general supervisory powers conferred by the Class Proceedings Act, 1992: see Fontaine v. Canada (Attorney General), 2012 BCSC 839, at paras. 111-12. Section 12 of the Act empowers the court to “make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination”. This broad jurisdiction exists throughout the implementation of the settlement agreement. As stated in Fantl v. Transamerica Life Canada, 2009 ONCA 377, 95 O.R. (3d) 767, at para. 39: “the court’s supervisory jurisdiction… continues throughout the ‘stages’ of the proceeding until a final disposition, including the implementation of the administration of a settlement”.
(d) Conclusion on jurisdiction
[39] The request that this court hear a contested motion sitting together with the supervisory judges from British Columbia and Québec in a different province raises an issue concerning this court’s inherent jurisdiction to fully control its own process. In particular, the request engages the following two functions of inherent jurisdiction as referred to in MacMillan Bloedel: ensuring convenience and fairness in legal proceedings and preventing steps being taken that would render judicial proceedings inefficacious.
[40] Accordingly, the issue then becomes whether this court should exercise its discretion to sit outside the territorial boundaries of Ontario.
(3) Should the court exercise its discretion to sit outside the territorial boundaries of Ontario?
[41] The prospect of a court exercising its discretion to sit outside the territorial boundaries of its home province only arises where the court has subject matter and personal jurisdiction over the proceeding. This scenario occurs infrequently. However, it does arise in relation to class action litigation and settlement administration involving national classes. Such cases are commonly referred to as “complex litigation” which of necessity require innovative solutions to problems that are often not addressed by the rules of court or by statute.
[42] Apart from the Hepatitis C class actions, provincial superior courts have certified a number of multi-jurisdictional class actions with extra-provincial class members: see, for example, Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 1995 7113 (ON SC), 25 O.R. (3d) 331 (Gen. Div.), leave to appeal to Divisional Court refused; Carom v. Bre-X Minerals Ltd. (1999), 1999 14781 (ON SC), 43 O.R. (3d) 441 (Gen. Div.); Webb v. K‑Mart Canada Ltd. (1999), 1999 15076 (ON SC), 45 O.R. (3d) 389 (S.C.); Wilson v. Servier Canada Inc. (2002), 2002 49484 (ON SC), 59 O.R. (3d) 656 (S.C.); McCutcheon v. The Cash Store Inc.(2006), 2006 15754 (ON SC), 80 O.R. (3d) 644 (S.C.); Harrington v. Dow Corning Corp. (1997), 1997 4153 (BC SC), 29 B.C.L.R. (3d) 88 (S.C.).
[43] A court should exercise its discretion to hold a hearing outside its home province sparingly. However, the interests of justice may in certain situations be such that the court is entitled – indeed, perhaps even required – to exercise its jurisdiction to hold a hearing outside its home province. When the exercise of this discretion takes place in the context of a class proceeding, the recognized goals of achieving judicial economy and enhancing access to justice must be taken into account. Therefore, these goals must be considered in determining the location of the hearing.
[44] The underlying motion before this court seeks to extend the deadline in the Hepatitis C settlement agreement for filing first claims. This will require the judges of the superior courts of Ontario, British Columbia and Québec to independently exercise their discretion pursuant to their supervisory jurisdiction over the settlement agreement. Under the terms of the settlement agreement, for an order of the courts to take effect, the courts must issue orders without material difference. The orders would be issued and entered in each judge’s respective home province.
[45] It is apparent that holding a single hearing instead of three will save expense and valuable resources. Equally important is that a single hearing will help to avoid potential additional costs by facilitating the process of rendering consistent judgments as mandated by the settlement agreement. Should the courts reach inconsistent orders, the parties may be required to re-attend, thereby requiring further legal costs that would be borne by the settlement trust.
[46] The risk of inconsistent decisions is a very real concern and not merely hypothetical. This scenario has unfolded previously in these proceedings. After the approval of the settlement agreement, a motion to obtain approval of the Administrator of the settlement agreement was brought in each of the three courts. Three separate and consecutive hearings were held in Ontario, British Columbia and Québec. The courts in Ontario and British Columbia approved the administrator recommended by class action counsel, whereas the Québec court raised concerns about that appointment and called for more evidence and submissions. In the end, the Québec court approved a different administrator. The Ontario and British Columbia courts were provided with the transcripts of the Québec proceeding and issued subsequent orders approving the Administrator approved by the Québec court.
[47] A joint hearing of all three supervisory courts avoids to the greatest extent possible – in keeping with the principle of judicial independence – the potential for inconsistent orders and the costs associated therewith. A joint hearing ensures that the supervisory judges will receive the same oral and written submissions and will be able to confer directly with one another before issuing an order on the merits.
[48] The alternative proposal advanced by AG Ontario of using video-conferencing technology to permit a concurrent hearing in three separate locations suffers from technical and logistical constraints. Given the current state of technology, 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. 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.
[49] AG Ontario further submits that the open courts principle demands that the hearing be held in Ontario, and that Ontario residents (including class members, defendants and other interested parties) would suffer prejudice by having to travel to attend the hearing in Edmonton. Further, Ontario submits that while the class members in other provincial jurisdictions have given up their right to have a hearing in their home provinces by not opting out of the class, the Ontario class members have not given up this right. This argument accepts that class members can voluntarily concede their right to an open hearing in their province.
[50] AG Ontario’s argument overlooks the fundamental reality of class proceedings, that Ontario class members are represented by class counsel. Class counsel consented on behalf of all class members to the hearing being conducted in another province. This is a complete answer to AG Ontario’s concerns that the open court principle is imperilled by holding the hearing outside of Ontario.
[51] 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.
E. CONCLUSION
[52] This motion raises a narrow procedural issue concerning the physical location of a hearing involving the pan-Canadian settlement agreement of the Hepatitis C class actions. No issue is taken with the composition of the class or with the court’s personal and subject matter jurisdiction over the proceeding.
[53] In the interests of promoting access to justice and judicial economy, the three supervisory courts were prepared to sit together to hear and determine a motion for directions regarding the extension of the time to file claims under the settlement agreement. This was an instance of judicial cooperation intended to permit the supervisory judges to efficiently and effectively hear submissions so that each court could render a decision on a matter within its own competence. In my view, AG Ontario’s highly restrictive reading of the inherent jurisdiction of the Superior Court of Justice to control its own process is inimical to this judicial initiative. Furthermore, in my opinion, AG Ontario’s proposed alternatives to a joint hearing, whether in the form of three duplicative hearings or a video-linked joint hearing, do not adequately address the goals of ensuring access to justice and judicial economy.
[54] Access to justice is a national and, indeed, an international, issue. The Hepatitis C and Indian Residential Schools class actions are internationally recognized examples of Canadian class proceedings that provided access to justice to thousands of people who suffered common wrongs. The procedural vehicle of the class action has permitted these victims to obtain redress for the harms they have suffered. The tragic events that gave rise to the actions transcended provincial borders and were national in scope. The settlements were pan-Canadian in nature because of the need to avoid inefficiencies and costly duplication which would have ensued had the settlements been limited by provincial jurisdictions.
[55] Within Canada’s constitutional framework, the provincial and territorial superior courts are charged with the responsibility for certifying class actions, approving settlement agreements, and, ultimately, administering those settlements. The provincial superior courts have had to adapt their procedures to ensure that settlements of pan-Canadian class actions achieve their intended purpose in the most efficient and effective way possible.
[56] Contrary to AG Ontario’s position, I conclude that there is no constitutional, statutory or common law provision precluding the Superior Court of Justice from conducting a hearing outside Ontario. Where 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.
[57] In deciding whether to exercise this discretion, the court should consider if sitting outside Ontario is in the interests of justice. In the class proceedings context where national or inter-provincial classes are involved, the interests of justice include the goals of achieving judicial economy and access to justice.
[58] Having regard to these considerations, I am satisfied that it is in the interests of justice for this court to conduct a hearing in a location outside Ontario alongside the other two supervisory judges from British Columbia and Québec.
Released: May 24, 2013 WKW
“W.K. Winkler C.J.O.”
[^1]: Chief Justice F. Rolland of the Québec Superior Court and Chief Justice R.J. Bauman of the Supreme Court of British Columbia are the two other supervisory judges of the settlement agreement.