Barbara L. Grossman Norm Emblem Christina Porretta April 7 2015 Appeal court confirms judge's inherent jurisdiction to sit outside home territory Dentons | Litigation - Canada Barbara L. Grossman , Norm Emblem, Christina Porretta Litigation IntroductionBackgroundMotion judge's decisionBritish Columbia Court of Appeal decisionOntario Court of Appeal decisionCommentIntroductionIn Parsons v Ontario, the Ontario Court of Appeal ruled that an Ontario Superior Court judge could preside at a hearing outside the province, provided that there was a video link back to an Ontario courtroom.(1) By divided reasons the court upheld the decision of the motion judge that the court had the inherent jurisdiction to sit outside Ontario without violating the open court principle under Section 135 of the Courts of Justice Act.(2)The Parsons decision is a companion decision to the British Columbia Court of Appeal's 2014 decision in Endean v Canadian Red Cross Society, which arose out of the same set of circumstances.(3) While the British Columbia Court of Appeal reached the opposite conclusion – that a British Columbia superior court judge did not have inherent jurisdiction to preside at a hearing outside British Columbia – the bottom line of both decisions may not be very different. The British Columbia Court of Appeal concluded that the hearing would notionally take place in British Columbia even if the judge and counsel were not personally present in the province, provided that there was a telephone, video conference or other communication link to a British Columbia courtroom and that counsel and witnesses could elect to participate in the hearing from the British Columbia courtroom.(4)BackgroundSince 1999, the superior courts of Ontario, Quebec and British Columbia have managed the settlement of Hepatitis C class actions brought against the Canadian Red Cross Society and the federal, provincial and territorial governments. The class actions arose out of a national tragedy caused by the distribution of tainted blood. Ultimately, governments across Canada entered into a pan-Canadian settlement with the plaintiffs. To facilitate the national settlement, the governments of all provinces and territories – apart from Quebec and British Columbia – took the unusual step of attorning to the jurisdiction of the Ontario courts.(5) To that end, superior court judges from British Columbia, Quebec and Ontario have supervised the implementation and enforcement of the settlement agreement.Motion judge's decisionThe motion judge's decision arose from a motion for directions in connection with a settlement implementation motion, which was a paper motion without the need to exercise any of the court's coercive powers such as the power to summons witnesses or cite for contempt. To facilitate a consensus among the supervisory judges, class counsel proposed that the judges sit together in one courtroom to hear submissions. The motions were to be heard jointly in Edmonton, Alberta where all three supervising judges would be present for a Canadian judicial meeting. The province of Ontario objected and argued that Ontario's supervisory judge could not sit outside the territorial boundaries of the province. Separate motions for direction were brought in each jurisdiction to resolve this jurisdictional objection – namely, whether the class action supervising judges of the superior courts of British Columbia, Ontario and Quebec could sit together in one location outside all of their provinces to hear a common settlement implementation motion that had to be brought in all three class actions.In Ontario, the motion judge, former Chief Justice Winkler (sitting as the supervising judge in the Ontario class action and not as a single judge of the Court of Appeal) held that an Ontario Superior Court justice had the discretion to sit with his or her judicial supervisory counterparts in a location outside Ontario without the necessity of a video conference link to a courtroom in Ontario, and that it was appropriate to exercise that discretion for these parallel settlement implementation motions.(6)After Winkler released his decision, the supervisory judges in both British Columbia and Quebec also heard motions for direction on the same issue, and both agreed that a superior court judge could preside at a hearing outside his or her respective province and this was an appropriate circumstance in which to do so.(7)Both the Ontario and British Columbia decisions were appealed. Quebec's attorney general did not appeal from the Quebec supervisory judge's decision and so that decision stands.British Columbia Court of Appeal decisionThe British Columbia Court of Appeal released its reasons in February 2014 and reversed the lower court decision, concluding that judges in British Columbia are not authorised to conduct judicial hearings outside the province. The court noted that such practice would create many policy and procedural issues, including infringing the host's territorial jurisdiction and violating the open court principle, which ensures that all members of the public interested in attending a hearing may do so. The court stated that this particular case did not justify a change to the common law and – in any event – modifications of the law to permit judges to sit outside their home provinces should be left to the legislatures.However, the appeal court stated that there would be no objection to a judge conducting a hearing by telephone, video conference or other communication medium when he or she is located outside the province, provided that the hearing is held in British Columbia. The court went on to elaborate that it was not essential for the judge, counsel or witnesses to be physically present in the province, provided that the hearing itself took place in a courtroom in British Columbia.(8) In Parsons, Justices LaForme and Lauwers characterised this as accepting a "legal fiction" that the hearing's physical location (ie, the courtroom where the parties and judges are located) can be different from its "deemed location" (ie, the courtroom receiving the video signal).(9)Leave has been sought to appeal the British Columbia Court of Appeal's decision to the Supreme Court. However, the written argument and decision on the leave application were deferred until after the Ontario Court of Appeal released its decision in Parsons.Ontario Court of Appeal decisionThe Ontario Court of Appeal reached a different conclusion on the issue of inherent jurisdiction. LaForme and Lauwers both agreed that a judge of the Ontario Superior Court has inherent jurisdiction to sit outside Ontario. However, in order to abide by the open court principle, Justices Lauwers and Juriansz concluded that there must be a video link back to an Ontario courtroom. LaForme did not consider the video link back to the Ontario courtroom to be essential. Each of the three judges delivered his own reasons.Inherent jurisdiction The majority on this point was formed by LaForme and Lauwers, who upheld the motion judge's decision that an Ontario judge could sit with the other supervising judges outside the province by exercising the court's inherent jurisdiction. The reasons were largely provided by LaForme.LaForme disagreed with the British Columbia Court of Appeal's decision, which based its conclusion largely on English common law. Instead, LaForme preferred the decision of the Ontario motion judge, who concluded that restrictions under English law were not determinative.(10) To that end, LaForme quoted the dicta from the Supreme Court in Morguard Investments Ltd v De Savoye that "there is no comparison between the interprovincial relationships of today and the relationships between foreign countries in the 19th century" and that there is a "need to shape common law rules in a way that accommodates modern commercial and societal realities".(11)LaForme noted the British Columbia Superior Court decision in Fontaine v Canada, which he found to be factually similar to the case at bar.(12) In Fontaine judges of the superior courts of Ontario, British Columbia, Quebec, Alberta and Saskatchewan sat together in Calgary, Alberta to hear a motion for approval in the Indian Residential Schools class settlement. The superior courts in four other provincial and territorial jurisdictions linked to the Alberta courtroom by telephone conference. While the jurisdictional issue was not raised in Fontaine, LaForme stated that the case was illustrative as the settlement in the Indian Residential Schools national class action was facilitated by judges sitting together in one location.(13)The province of Ontario argued that even if the court has inherent jurisdiction, Section 15(1) of the Courts Justice Act implicitly limits the ability of an Ontario superior court judge to sit outside Ontario. LaForme agreed that although inherent jurisdiction may be limited by statutory enactment, the limits must be explicit. Relying on the Supreme Court's decision in R v Caron, Laforme held that the inherent jurisdiction of the superior courts "cannot be cut down by mere inference".(14)Accordingly, LaForme concluded that nothing prevents an Ontario judge from exercising the court's inherent jurisdiction, such that a judge of the Ontario Superior Court of Justice may conduct a hearing outside Ontario where it is in the interests of justice to do so. In the circumstances of this case – involving a national class action that would benefit greatly from inter-provincial cooperation – LaForme agreed with the motion judge that it is in the interests of justice for the supervisory judges to sit together to hear the parallel motions argued together in a single location outside Ontario.Open court principle and territorial jurisdictionThe decision of the motion judge was unqualified such that in his view, the open court principle under Section 135 of the Courts Justice Act would not be impaired if a hearing were conducted outside Ontario. When presented with the alternative of having the concurrent motions argued from separate courtrooms in each home province that were connected by video link, he found that the video conference alternative suffered from "technical and logistical constraints" and that "video conferencing technology does not offer the equivalent procedural advantage of holding a hearing before all the supervisory judges in one location".(15) LaForme agreed and, in partially dissenting reasons, concluded that an Ontario court's discretionary authority to hold an out-of-province hearing does not depend on the presence of a video link. However, on the issue of the open court principle, the majority was formed by Lauwers and Juriansz, who both disagreed with the motion judge and allowed the appeal because the motion judge's decision did not require a video link back to the Ontario courtroom, which they considered essential to comply with the open court principle.The reasons of Lauwers and Juriansz focused on the scope of Section 135 of the Courts Justice Act. In their view, the intention of the Ontario legislature was to guarantee the Ontario public the prima facie right to attend all court hearings of Ontario courts, which did not involve the Ontario public being obliged to travel to another province in order to exercise the right to attend the hearing. Rather, for the statutory right to be meaningful, the Ontario public must be able to attend the hearing at an Ontario courtroom.Lauwers held that not providing a video link back to Ontario would be a violation of the open court principle. In his view, Section 135 of the Courts Justice Act requires a "video pipe" between the room or rooms outside Ontario in which the hearing is held and a reasonably accessible Ontario courtroom. Only then can the hearing be said to be open to members of the Ontario public who wish to attend.Juriansz agreed with the result reached by Lauwers, but his reasoning was quite different. Juriansz relied on Rule 1.08 of the Ontario Rules of Civil Procedure, which allows for a motion to be heard by video conference.(16) According to Juriansz, the proposed hearing with all judges and counsel in a courtroom outside Ontario would fall within this rule if there was a video link back to an Ontario courtroom. He concluded that the Ontario supervising judge, while physically located outside the province, had the jurisdiction and discretion to conduct the motion remotely and concurrently with his or her judicial supervisory counterparts.(17) Therefore, in his view, as it was possible to satisfy the dictates of Section 135 of the Courts Justice Act by employing Rule 1.08; no resort to inherent jurisdiction was required and the open court principle was not impaired.(18) Juriansz left open the issue of whether the court could order the parties to appear at the out-of-province location, as that issue did not arise in this case.However, in his partial dissenting reasons, LaForme agreed in totality with the motion judge and held that the court had the inherent jurisdiction to sit outside Ontario even in the absence of a video link to an Ontario courtroom. LaForme listed three reasons to support his conclusion:Out-of-province hearings would presumably take place in a courtroom open to the public, thereby preserving the cleansing effect that public scrutiny has on the legitimacy of legal proceedings.The media would still be free to report on what occurred at the hearing. Therefore, Canadians would still have the opportunity to ensure "that justice is administered in a non-arbitrary manner, according to the rule of law".The open court principle "does not guarantee a right to be physically present in the courtroom" and "must yield to circumstances that would render the proper administration of justice unworkable". In this way, the open court principle does not serve as an automatic bar to out-of-province hearings. Instead, it is an important factor for consideration when a judge exercises his or her discretion to direct the precise contours of an out-of-province hearing.(19)According to LaForme, the mere presence of a video link did not resolve the jurisdictional issue before the court.(20) Rather, in his view, Section 135 of the Courts Justice Act did not preclude an Ontario judge from exercising inherent jurisdiction to sit outside the province in order to conform to modern-day realities, such as the reality that litigants and other members of the public may have to travel considerable distances to attend a court hearing.Comment Given the differing decisions of the Ontario and British Columbia appellate courts on the issue of inherent jurisdiction and the differences in the reasoning among the three judges of the Ontario Court of Appeal, the final word on the jurisdiction to hold out-of-province hearings may well come from the Supreme Court. The Ontario Court of Appeal regarded the issue as one of national importance that is likely to arise again in connection with the administration of the Hepatitis C national class settlement and in other pan-Canadian class proceedings.(21)Juriansz expressly noted that he saw nothing controversial in the concept of holding concurrent hearings by having judges from different courts sitting together to hear the common motions. He noted the transnational precedent for that in the Nortel cross-border insolvency proceedings.(22) However, on the main points in issue, the Ontario Court of Appeal made it clear that it was not dealing with a transnational issue but rather an issue of sitting outside provincial territorial boundaries in another sister province. It remains to be seen whether the Supreme Court will elucidate on how the main points in issue should be resolved in the transnational context.For further information on this topic please contact Barbara Grossman, Norm Emblem or Christina Porretta at Dentons by telephone (+1 416 863 4511) or email ([email protected], [email protected] or [email protected]). The Dentons website can be accessed at www.dentons.com.Endnotes(1) 2015 ONCA 158.(2) RSO 1990, c C-43.(3) Endean v BC, 2014 BCCA 61 [Endean]. For more information please see "British Columbia appeal court sets territorial jurisdiction limits for superior courts".(4) Endean v Canadian Red Cross Society, 2013 BCSC 1074. See paras 79-83.(5) Parsons, supra note 1 at para 12.(6) A video broadcast to an Ontario courtroom was not requested by anyone. See Parsons, supra note 1 at paras 160-169 and 217-218.(7) Honhon v Canada, 2013 QCCS 2782.(8) Endean, supra note 3 at para 79.(9) Parsons, supra note 1 at paras 167 and 235(10) Parsons, supra note 1 at para 107.(11) Parsons, supra note 1 at para 108.(12) 2012 BCSC 839 (Fontaine).(13) Parsons, supra note 1 at paras 113 & 120(14) Parsons, supra note 1 at paras 126-127.(15) Parsons, supra note 1 at para 162.(16) RRO 1990, Reg 194.(17) Parsons, supra note 1 at para 224.(18) Parsons, supra note 1 at para 226.(19) Parsons, supra note 1 at paras 145-148.(20) Parsons, supra note 1 at para 165.(21) Parsons, supra note 1 at paras 56, 188 and 230.(22) Parsons, supra note 1 at paras 224-225. Albeit in Nortel the concurrent cross-border hearings took place in Canadian and US courtrooms that were connected by video link to facilitate the concurrent hearings, rather than having all judges and counsel physically present in a single location.