Kotyk Estate et al. v. Canadian Red Cross Society et al., (2015) 331 O.A.C. 71 (CA)

• Judge: Juriansz, LaForme and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 16, 2014
• Jurisdiction: Ontario
• Citations: (2015), 331 O.A.C. 71 (CA);2015 ONCA 158

Kotyk Estate v. Red Cross (2015), 331 O.A.C. 71 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.017

Proceeding under the Class Proceedings Act, 1992

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/respondents) v. Her Majesty the Queen in Right of Ontario (defendant/appellant) and The Canadian Red Cross Society and the Attorney General of Canada (defendants/respondents) and Her Majesty the Queen in Right of Alberta, Her Majesty the Queen in Right of Saskatchewan, Her Majesty the Queen in Right of Manitoba, Her Majesty the Queen in Right of New Brunswick, Her Majesty the Queen in Right of Prince Edward Island, Her Majesty the Queen in Right of Nova Scotia, Her Majesty the Queen in Right of Newfoundland and Labrador, the Government of the Northwest Territories, the Government of Nunavut, and the Government of the Yukon Territory (intervenors)

Proceeding under the Class Proceedings Act, 1992

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/respondents) v. Her Majesty the Queen in Right of Ontario (defendant/appellant) and The Canadian Red Cross Society and the Attorney General of Canada (defendants/respondents) and Her Majesty the Queen in Right of Alberta, Her Majesty the Queen in Right of Saskatchewan, Her Majesty the Queen in Right of Manitoba, Her Majesty the Queen in Right of New Brunswick, Her Majesty the Queen in Right of Prince Edward Island, Her Majesty the Queen in Right of Nova Scotia, Her Majesty the Queen in Right of Newfoundland and Labrador, the Government of the Northwest Territories, the Government of Nunavut, and the Government of the Yukon Territory (intervenors)

(C57131; 2015 ONCA 158)

Indexed As: Kotyk Estate et al. v. Canadian Red Cross Society et al.

Ontario Court of Appeal

Juriansz, LaForme and Lauwers, JJ.A.

March 13, 2015.

Summary:

Since 1999, the superior courts of Ontario, Québec 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 federal, provincial, and territorial governments entered into a pan-Canadian settlement with the plaintiffs (the settlement agreement). Superior court judges from British Columbia, Ontario and Québec had supervised the implementation and enforcement of the settlement agreement. On a motion for directions, class counsel proposed that the three supervisory judges sit together in Edmonton, Alberta, to hear parallel motions arising under the settlement agreement.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 3053, concluded that Ontario's supervisory judge had the discretionary authority to conduct a hearing under the settlement agreement outside the boundaries of Ontario. He also concluded that it was appropriate to exercise that discretionary authority. The Attorney General of Ontario appealed.

The Ontario Court of Appeal, LaForme and Lauwers, JJ.A., dissenting in part, allowed the appeal.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction and jurisdiction to stay an action) - Since 1999, the superior courts of Ontario, Québec 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 federal, provincial, and territorial governments entered into a pan-Canadian settlement with the plaintiffs (the settlement agreement) - Superior court judges from British Columbia, Ontario and Québec had supervised the implementation and enforcement of the settlement agreement - On a motion for directions, class counsel proposed that the three supervisory judges sit together in Edmonton, Alberta, to hear parallel motions arising under the settlement agreement - The motion judge concluded that Ontario's supervisory judge had the discretionary authority to conduct a hearing under the settlement agreement outside the boundaries of Ontario - He also concluded that it was appropriate to exercise that discretionary authority - The Attorney General of Ontario appealed - The Ontario Court of Appeal held that the motion judge's decision to the effect that he had authority, in the exercise of the court's inherent jurisdiction, to sit with the other supervising judges outside of the province of Ontario was correct - There were no constitutional, common law or statutory impediments to the motion judge's order - In the end result, the appeal was allowed - See paragraphs 63 to 138.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - Since 1999, the superior courts of Ontario, Québec 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 federal, provincial, and territorial governments entered into a pan-Canadian settlement with the plaintiffs (the settlement agreement) - Superior court judges from British Columbia, Ontario and Québec had supervised the implementation and enforcement of the settlement agreement - On a motion for directions, class counsel proposed that the three supervisory judges sit together in Edmonton, Alberta, to hear parallel motions arising under the settlement agreement - The motion judge concluded that Ontario's supervisory judge had the discretionary authority to conduct a hearing under the settlement agreement outside the boundaries of Ontario - He also concluded that it was appropriate to exercise that discretionary authority - The Attorney General of Ontario appealed - A preliminary issue was mootness - Whether the supervisory judges could sit together to hear the claims extension motions was no longer a live issue, as the motions had already been heard and decided - Accordingly, the issue was whether this court should exercise its discretionary authority to hear this appeal even though it was moot - The Ontario Court of Appeal held that it should decide the jurisdictional issue because it was likely to arise again in connection with the administration of the settlement agreement and other pan-Canadian class proceedings - This case raised an issue that should be resolved because of its national importance and the continuing social cost of leaving it unsettled - See paragraphs 54 to 56.

Courts - Topic 4806

Common law - General - Hearings - Open court - Since 1999, the superior courts of Ontario, Québec 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 federal, provincial, and territorial governments entered into a pan-Canadian settlement with the plaintiffs (the settlement agreement) - Superior court judges from British Columbia, Ontario and Québec had supervised the implementation and enforcement of the settlement agreement - On a motion for directions, class counsel proposed that the three supervisory judges sit together in Edmonton, Alberta, to hear parallel motions arising under the settlement agreement - The motion judge concluded that Ontario's supervisory judge had the discretionary authority to conduct a hearing under the settlement agreement outside the boundaries of Ontario - He also concluded that it was appropriate to exercise that discretionary authority - The Attorney General of Ontario appealed - The Ontario Court of Appeal, LaForme, J.A., dissenting, allowed the appeal - The motion judge erred in failing to give effect to the open court principle as reflected in s. 135 of the Courts of Justice Act - Section 135 required a "video pipe" between the room or rooms outside Ontario in which the hearing is held and a reasonably accessible Ontario courtroom - Only then could the hearing be said to be open to members of the Ontario public who wished to attend - Therefore, s. 135 was an express statutory limitation on the court's inherent jurisdiction to hold a hearing outside Ontario - See paragraphs 212 to 227 and 232 to 235.

Practice - Topic 5001

Conduct of trial - General principles - Open court - General - [See Courts - Topic 4806 ].

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders - What constitute - Since 1999, the superior courts of Ontario, Québec 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 federal, provincial, and territorial governments entered into a pan-Canadian settlement with the plaintiffs (the settlement agreement) - Superior court judges from British Columbia, Ontario and Québec had supervised the implementation and enforcement of the settlement agreement - On a motion for directions, class counsel proposed that the three supervisory judges sit together in Edmonton, Alberta, to hear parallel motions arising under the settlement agreement - The motion judge concluded that Ontario's supervisory judge had the discretionary authority to conduct a hearing under the settlement agreement outside the boundaries of Ontario - He also concluded that it was appropriate to exercise that discretionary authority - The Attorney General of Ontario appealed - A preliminary issue was whether the Court of Appeal had jurisdiction to hear the appeal - The Ontario Court of Appeal held that it had jurisdiction to hear the appeal under s. 6(1)(b) of the Courts of Justice Act - LaForme, J.A., stated that "[t]he motion for directions was not merely a step in the underlying motion for approval of a proposed protocol extending the first claims deadline in the Settlement Agreement. The questions posed on the motion for directions did not only ask whether the supervisory judges could hear that particular motion while sitting together in one province. Rather, the motion required a determination generally as to whether the supervisory judges may sit together to hear concurrent motions arising under the Settlement Agreement. The motion judge's order disposed of the motion on the merits by granting declaratory relief in a form that was consistent with the moving party's position. Thus ... the order is final ..." - See paragraphs 38 to 53 - Juriansz, J.A., would have concluded that the courts lacked jurisdiction to determine the appeal because the motion judge's order was interlocutory - See paragraph 190 to 210 - Lauwers, J.A., agreed with LaForme, J.A., on this issue - See paragraph 231.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Courts - Topic 2286 ].

Practice - Topic 8985.2

Appeals - When appeal available - From a direction of the court - [See Practice - Topic 5779 ].

Cases Noticed:

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, consd. [para. 1].

Canada Post Corp. v. Lépine, [2009] 1 S.C.R. 549; 387 N.R. 91; 2009 SCC 16, refd to. [para. 4].

Endean v. Canadian Red Cross Society et al., [2013] B.C.T.C. Uned. 1074; 2013 CarswellBC 1828; 2013 BCSC 1074, revd. (2014), 352 B.C.A.C. 7; 601 W.A.C. 7; 59 B.C.L.R.(5th) 113; 2014 BCCA 61, refd to. [paras. 26, 27].

Honhon v. Canada (Procureur général), 2013 CarswellQue 6102; 2013 QCCS 2782, refd to. [para. 26].

Parsons v. Canadian Red Cross Society, 2014 ONSC 7788, refd to. [para. 30].

Endean v. Canadian Red Cross Society et al., [2014] B.C.T.C. Uned. 621; 2014 BCSC 621, refd to. [para. 30].

Honhon v. Canada (Procureur général), 2014 QCCS 2032, refd to. [para. 30].

Locking v. Armtec Infrastructure Inc. - see Simmonds et al. v. Armtec Infrastructure Inc. et al.

Simmonds et al. v. Armtec Infrastructure Inc. et al. (2012), 299 O.A.C. 20; 2012 ONCA 774, refd to. [para. 39].

Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), refd to. [para. 42].

Waldman v. Thomson Reuters Canada Ltd. (2015), 330 O.A.C. 142; 2015 ONCA 53, refd to. [para. 43].

Buck Brothers Ltd. et al. v. Frontenac Builders Ltd. et al. (1994), 73 O.A.C. 298; 19 O.R.(3d) 97 (C.A.), refd to. [para. 51].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 56].

Ontario v. Criminal Lawyers' Association of Ontario - see R. v. Russel (W.I.).

R. v. Russel (W.I.), [2013] 3 S.C.R. 3; 447 N.R. 111; 308 O.A.C. 347; 2013 SCC 43, refd to. [para. 64].

R. v. Caron (G.) (2011), 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 2011 SCC 5, refd to. [para. 66].

Reference Re Young Offenders Act and Youth Court Judges, [1991] 1 S.C.R. 252; 121 N.R. 81; 89 Nfld. & P.E.I.R. 91; 278 A.P.R. 91, refd to. [para. 69].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 70].

R. v. Keyn (1876), 2 Ex. D. 63, refd to. [para. 103].

Reference re Offshore Mineral Rights (1967), 65 D.L.R. (2d) 353 (S.C.C.), refd to. [para. 103].

Ewachniuk v. Law Society of British Columbia (1998), 104 B.C.A.C. 117; 170 W.A.C. 117; 156 D.L.R.(4th) 1 (C.A.), dist. [para. 105].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 108].

Fontaine et al. v. Canada (Attorney General) et al., [2012] B.C.T.C. Uned. 839; [2012] B.C.W.L.D. 8453; 2012 BCSC 839, refd to. [para. 113].

R. v. Pilarinos (D.) et al., [2001] B.C.T.C. 1690; 52 W.C.B.(2d) 161; 2001 BCSC 1690, dist. [para. 118].

Glover v. Minister of National Revenue (1980), 43 N.R. 273; 29 O.R.(2d) 392 (C.A.); affd. [1981] 2 S.C.R. 56; 43 N.R. 271, refd to. [para. 128].

College Housing Co-Operative Ltd. et al. v. Baxter Student Housing Ltd. et al., [1976] 2 S.C.R. 475; 5 N.R. 515, refd to. [para. 129].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 140].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 141].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 141].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 141].

1250264 Ontario Inc. v. Pet Valu Canada Inc. (2013), 305 O.A.C. 329; 115 O.R.(3d) 653; 2013 ONCA 279, refd to. [para. 154].

Manos Foods International Inc. v. Coca-Cola Ltd. et al. (1997), 26 O.T.C. 41; 180 D.L.R.(4th) 309 (Gen. Div.), refd to. [para. 193].

Abbott et al. v. Collins et al. (2002), 165 O.A.C. 272; 62 O.R.(2d) 99 (C.A.), refd to. [para. 193].

Jones (M.J.) Inc. et al. v. Kingsway General Insurance Co. et al. (2003), 178 O.A.C. 351; 68 O.R.(3d) 131 (C.A.), refd to. [para. 193].

Smith Estate et al. v. National Money Mart Co. et al. (2008), 243 O.A.C. 173; 2008 ONCA 746, refd to. [para. 193].

Alfano v. Piersanti et al., [2012] O.A.C. Uned. 358; 2015 ONCA 442, refd to. [para. 193].

Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), refd to. [para. 196].

Fontaine et al. v. Canada (Attorney General) et al., [2012] B.C.T.C. Uned. 839; 2012 BCSC 839, dist. [para. 205].

Nortel Networks Corp. et al., Re, [2011] O.T.C. Uned. 3805; 2011 ONSC 3805, refd to. [para. 224].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 6(1)(b) [para. 40]; sect. 135 [para. 213].

Authors and Works Noticed:

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Curr. Legal Probs. 23, pp. 23 [para. 132]; 51 [paras. 65, 70].

Mason, Keith, The Inherent Jurisdiction of the Court (1983), 57 A.L.J. 449, p. 449 [para. 70].

Counsel:

Malliha Wilson, Michele Smith and Joshua Hunter, for the appellant, Attorney General of Ontario;

Paul Vickery and Matthew Sullivan, for the respondent, Attorney General of Canada;

John E. Callaghan and Alex Zavaglia, for the respondent, Fund Counsel for Ontario;

Paul J. Pape and Shantona Chaudhury, for the respondent, David Tull;

Caroline Zayid and H. Michael Rosenberg, for the interveners.

This appeal was heard on September 16, 2014, by Juriansz, LaForme and Lauwers, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was delivered on March 13, 2015, and included the following opinions:

LaForme, J.A., dissenting in part - see paragraphs 1 to 186;

Juriansz, J.A., dissenting in part - see paragraphs 187 to 229;

Lauwers, J.A. - see paragraphs 230 to 236.