The Ontario Court of Appeal's March 13, 2015 decision in Parsons v. Ontario has added another layer of complexity to the procedure surrounding multijurisdictional class actions. A sharply divided Ontario Court of Appeal held that it was an error of law to hold a sitting of the Ontario Superior Court outside of Ontario in the absence of a video link to a courtroom in Ontario. A majority of the Court of Appeal held that such a video link was necessary to ensure that the Ontario public has access to the proceedings. The Court of Appeal’s decision serves a useful reminder of the territorial and jurisdictional limits of the Ontario Superior Court in an era of global commerce, but will likely create an additional obstacle to efforts to improve the coordination and efficient management of multijurisdictional class proceedings.
The decision was extremely complex and lengthy, and each of the three judges sitting on the panel wrote a separate set of reasons. It would appear that the major points emerging from the case include:
- In Ontario, an appeal from an order permitting a sitting of a Court outside of the province is likely to be considered a “final” order rather than an interlocutory order, at least in the context of supervising a settlement, meaning an appeal of that order is taken to the Court of Appeal rather than the Divisional Court.
- In principle, the Ontario Superior Court may sit outside Ontario, but a video link to a courtroom in Ontario will be required.
- There will always be discretion to decline to hold a sitting of a provincial superior court outside of its home province.
- There remains a need for comprehensive guidance from the provincial legislatures about practice in the area of multijurisdictional class proceedings.
Given the dissents on various issues in Parsons, and the different results achieved at different levels of Court in cases in Ontario, Québec and British Columbia in this respect, it will be interesting to see if the Supreme Court of Canada will grant leave to appeal the decision in Parsons and/or a similar B.C. case, Endean v. British Columbia. (The Supreme Court granted an extension of time to seek leave to appeal Endean until 60 days after the release of the reasons in Parsons.)