The Ontario Court of Appeal, in a split decision, has held that a judge of Ontario’s Superior Court of Justice, acting as a supervisory judge under a national class action settlement agreement, can participate in a joint hearing with non-Ontario judges either inside or outside Ontario. The ultimate decision accords with the British Columbia Court of Appeal’s ruling on the same issue. Given the national issues raised by these appeals and the partial dissent, these cases may be headed to the Supreme Court of Canada.

In the late 1980s, people infected with the Hepatitis C virus by the Canadian blood supply initiated class actions in Ontario, British Columbia and Québec. In 1999, the parties settled, which established a $1.118 billion fund for claimants across Canada. The governments of all of the provinces and territories other than Québec and British Columbia attorned to the jurisdiction of the Ontario court. Class members who are residents of provinces and territories other than British Columbia and Québec are members of the Ontario class and fall under the jurisdiction of the Ontario court.

The Settlement Agreement assigns a supervisory role to the superior courts in each of British Columbia, Ontario and Québec. Further, any court’s order will take effect only once the other two courts make materially identical orders and settlement itself would not take effect until each of the courts had approved it in materially identical terms.

To facilitate this judicial cooperation and to resolve an issue regarding the late filing of claims to the settlement fund, class counsel proposed that the three supervisory judges sit together in one courtroom to hear submissions (the proposed location was Edmonton, where all three judges would be attending a meeting). Ontario objected. The motion judge (Chief Justice Warren Winkler (as he was then), sitting as a Superior Court judge) held there was no legal impediment to the supervisory judges sitting together to hear the motions either inside or outside Ontario.

The supervisory judges in Québec and British Columbia agreed. The British Columbia Attorney General appealed. In the interim, the motions were heard separately. The judges reached three conflicting conclusions.

Justice Juriansz would have dismissed the appeal because the appeal was interlocutory. Justice LaForme would have dismissed the appeal on its merits altogether. He agreed with Justices Juriansz and Lauwers there are “no constitutional, common law or statutory barriers to employing the inherent powers of the court to conduct an out-of-province hearing….” Justice Lauwers, though, agreed with Justice Juriansz that the motion judge erred in concluding that a video link to a courtroom in Ontario is not required when a hearing is conducted from outside the Province.

Pending any further appeal, the decision is likely to affect other national class actions. Absent a national protocol, the decision is likely to be used by parties to argue for extra-provincial hearings, albeit with a video link to preserve the “open courts” principal.