



COURT OF APPEAL FOR ONTARIO

CITATION: Parsons v. Ontario, 2015 ONCA 158

DATE: 20150313

DOCKET: C57131

Juriansz, LaForme and Lauwers JJ.A.

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 (Respondents)

and

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

Interveners

Proceeding under the
Class Proceedings Act, 1992

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 (Respondents)

and

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

Interveners

Proceeding under the
Class
    Proceedings Act, 1992

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

Heard: September 16, 2014

On appeal from the order of Chief Justice Warren Winkler
    (sitting as a Judge of the Superior Court of Justice), dated May 24, 2013,
    reported at 2013 ONSC 3053.

H.S. LaForme J.A. (dissenting in part):

I.

INTRODUCTION

[1]

Class actions are a vitally important component
    of our justice system. Because class actions allow a large number of individual
    claims to proceed as one representative action, they facilitate access to
    justice, judicial economy, and behaviour modification: see
Western
    Canadian Shopping Centres Inc. v. Dutton
, 2001 SCC 46,
    [2001] 2 S.C.R. 534, at paras. 26-29. In recognition of their importance,
    some provinces have passed class actions legislation  for example, Ontarios
Class
    Proceedings Act
,
1992
,
    S.O. 1992, c. 6. Where a province does not have such legislation, the Supreme
    Court of Canada has recognized the right to bring a class action
    notwithstanding the absence of legislation: see
Western Canadian
    Shopping Centres
,
at para. 34.

[2]

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 class actions arose out of a
    national tragedy caused by the distribution of tainted blood. Canadians coast
    to coast were affected.

[3]

Ultimately, the federal, provincial, and
    territorial governments entered into a pan-Canadian settlement with the
    plaintiffs (the Settlement Agreement). The Settlement Agreement was designed
    to treat all Canadians within its scope fairly, consistently and in accordance
    with the settlement terms. To that end, superior court judges from British
    Columbia, Ontario and Québec have supervised the implementation and enforcement
    of the Settlement Agreement.

[4]

In 2009, the Supreme Court of Canada in
Canada
    Post Corp. v. Lépine,
2009 SCC 16,

[2009] 1 S.C.R. 549, at para. 57,
    urged provincial legislatures to develop a legislative framework for national
    class actions:

[T]he provincial legislatures should pay more attention to the
    framework for national class actions and the problems they present. More
    effective methods for managing jurisdictional disputes should be established in
    the spirit of mutual comity that is required between the courts of different
    provinces in the Canadian legal space.

[5]

Provincial legislatures have not, as yet,
    responded to the Supreme Courts call to action. And, as the Supreme Court
    first noted in
Western Canadian Shopping Centres
, at para. 34
, [a]bsent 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.

[6]

In this case, that is exactly what Ontarios
    supervisory judge did on a motion for directions (the motion judge). 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 Ontarios supervisory judge has 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 in the circumstances of the case before him:
Parsons
    v. The Canadian Red Cross Society
,
2013 ONSC 3053, 363 D.L.R. (4th) 352.

[7]

The Attorney General of Ontario (Ontario)
    appeals from that decision. On appeal, it raises a new objection, arguing that
    the other two supervisory judges from British Columbia and Québec may not sit
    in Ontario.

[8]

Ontario does not dispute that the supervisory
    judges have personal jurisdiction over the parties to the Settlement Agreement
    and subject matter jurisdiction over matters arising under the Settlement
    Agreement. Ontario only objects to the physical location of the hearing.

[9]

Thus, the fundamental issue on this appeal is
    whether the motion judge erred in concluding that a judge of Ontarios Superior
    Court of Justice, acting as a supervisory judge under the Settlement Agreement,
    could participate in a joint hearing with the other two supervisory judges
    either inside or outside of Ontario by virtue of the inherent jurisdiction of a
    superior court to control its own process.

[10]

I see no reason to interfere with the motion
    judges decision. Accordingly, I would dismiss the appeal.

II.

Background

A.

Settlement Agreement

[11]

People infected with the Hepatitis C virus by
    the Canadian blood supply between 1986 and 1990 initiated class proceedings in
    Ontario, British Columbia and Québec. In each of the three class proceedings,
    the defendants included the Attorney General of Canada (Canada) and the
    Attorney General of each of the three provinces.

[12]

In 1999, the parties reached a pan-Canadian
    settlement. To facilitate the national settlement, the governments of all provinces
    and territories other than Québec and British Columbia took the unusual step of
    attorning to the jurisdiction of the Ontario courts. Accordingly, 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.

[13]

The Settlement Agreement was approved by each of
    Ontarios, British Columbias and Québecs superior courts. It provided for the
    establishment of a $1.118 billion fund to which eligible claimants from across
    Canada could apply to receive compensation.

[14]

As noted, the Settlement Agreement assigned a
    supervisory role to the Superior Court of Justice for Ontario, the Supreme
    Court of British Columbia, and the Superior Court of Québec. Article 10.01(1)
    of the Settlement Agreement provides, in part:

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 and the
    Funding Agreement.

[15]

Under the Settlement Agreement, each of the
    three courts is to exercise its independent supervisory power over the
    litigation settlement within its own jurisdiction while recognizing that the
    broader scope of the pan-Canadian settlement requires a collective judicial
    oversight.

[16]

Article 10.01(2) of the Settlement Agreement
    provides that any courts order will take effect only once the other two courts
    make materially identical orders. Similarly, Article 12.01 provides that the
    settlement itself would not take effect until each of the courts had approved
    it in materially identical terms. Thus, the Settlement Agreement anticipates
    close judicial cooperation.

B.

Motion Judges Decision

[17]

I now turn to the decision under appeal.

[18]

The motion judges decision arises from a motion
    for directions. It was brought to resolve an issue stemming from previous
    motions filed by class counsel in Ontario, British Columbia and Québec to
    permit the late filing of claims to the settlement fund (the claims extension
    motions). To facilitate a consensus among the supervisory judges, class
    counsel proposed that the judges sit together in one courtroom to hear
    submissions and resolve the claims extension motions. The motions were to be heard
    jointly in Edmonton, Alberta, since all of the supervisory judges were
    scheduled to be there for a meeting of the Canadian Judicial Council.

[19]

Ontario objected, arguing that Ontarios
    supervisory judge could not sit outside the territorial boundaries of the
    province. Separate motions for directions were brought in each jurisdiction to
    resolve this jurisdictional objection (the jurisdictional issue). The claims
    extension issue was initially set aside until after the jurisdictional issue
    was decided.

[20]

On the jurisdictional issue, the motion judge
    concluded that Ontarios supervisory judge could sit outside Ontario with his
    supervisory colleagues to hear the claims extension motions. He held that
    [w]here 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:
Parsons
, at para. 56.

[21]

Although the motion judge acknowledged that
    there were historical common law restrictions preventing English courts from
    sitting outside England going back to the
Magna Carta
, he found that those restrictions do not apply here because they
    fly in the face of the obvious intention of the Constitution to create a
    single country and because they are not suited to modern realities of
    increasingly complex litigation involving parties and subject matters that
    transcend provincial borders:
Parsons
, at
    paras. 22-25. He distinguished between an English court sitting outside England
    and a provincial superior court sitting elsewhere in Canada.

[22]

The motion judge concluded that there was no
    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:
Parsons
, at para. 32. Rather, he found that common law authority 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:
Parsons
, at para. 32.

[23]

In the circumstances of this case  involving a
    national class action that would greatly benefit from inter-provincial judicial
    cooperation  the motion judge held it was in the interests of justice for the
    supervisory judges to sit together to hear the claims extension motions inside
    or outside of Ontario. A joint sitting, he found, would allow the supervisory
    judges to receive the same submissions, confer, reach consistent findings in
    accordance with the Settlement Agreements requirements and avoid costly
    duplication. The alternative of each supervisory judge sitting in his home
    province linked to the others by video, would, in his view, be disruptive and
    inadequate.

[24]

The motion judge rejected Ontarios submission
    that the open court principle demands that the hearing be held in Ontario. He
    noted that class counsel did not request that the hearing be transmitted by way
    of video link to an Ontario courtroom:
Parsons
,
    at para. 51.

[25]

The motion judge ultimately ordered the
    following:

1.      The judge of the Ontario Superior Court of
    Justice supervising the 1986-1990 Hepatitis C Settlement Agreement has the
    discretion to sit with his or her judicial supervisory counterparts in a
    location inside or outside Ontario to hear motions under the 1986-1990
    Hepatitis C Settlement Agreement without the necessity of a video-conference
    link to a court room in Ontario.

2.      The judge of the Ontario Superior Court of
    Justice supervising the 1986-1990 Hepatitis C Settlement Agreement may conduct
    the hearing, which is the subject matter of the motion in these matters dated
    August 13, 2012, in a location inside or outside Ontario alongside the other
    two supervisory judges from British Columbia and Quebec.

C.

Subsequent Events

[26]

After the motion judges decision, the
    supervisory judges in British Columbia and Québec also heard motions for
    directions on the jurisdictional issue. Both agreed with the motion judges
    decision: see
Endean v. Canadian Red Cross Society
, 2013 BCSC 1074, 2013 CarswellBC 1828;
Honhon c. Canada
    (Procureur général)
, 2013 QCCS 2782, 2013 CarswellQue
    6102.

[27]

Québecs Attorney General did not appeal from
    the Québec supervisory judges decision and so that decision stands.

[28]

British Columbias Attorney General did appeal.
    The Court of Appeal for British Columbia (BCCA) allowed the appeal. It
    concluded that a British Columbia judge cannot conduct a hearing outside of his
    or her home province: see
Endean v. British Columbia
, 2014 BCCA 61, 59 B.C.L.R. (5th) 113. However, the BCCA stated that
    a superior court judge who is not physically present in British Columbia can
    conduct a hearing in British Columbia by way of telephone, video-conference or
    other communication medium.

[29]

While the British Columbia appeal and this
    appeal were pending, class counsel proposed that the claims extension motions
    be heard concurrently before the three supervisory judges in Toronto. Ontario
    objected again. As a result, separate claims extension motions were heard in
    Ontario, Québec and British Columbia. The supervisory judges reached three
    conflicting conclusions.

[30]

The Ontario Superior Court provisionally
    approved the late claims protocol, subject to approval by the courts of British
    Columbia and Québec:
Parsons v. Canadian Red Cross Society
, 2014 ONSC 7788. The British Columbia Supreme Court refused to
    approve the protocol on the basis that approval would amount to a fundamental
    amendment to the Settlement Agreement:
Endean v. Canadian Red Cross
    Society
, 2014 BCSC 621, at para. 27. The Québec Superior
    Court refused to approve the protocol, finding that the motion was premature:
Honhon
    c. Canada (Procureur general
, 2014 QCCS 2032, at para.
    30.

[31]

Even though it is now too late to hold hearings
    on the claims extension motions, the parties argue that the jurisdictional
    issue before this court is not moot as it is likely to arise again in
    subsequent settlement administration motions.

[32]

I will say more about mootness and the scope of
    the appeal later in these reasons.

III.

THE ISSUES

[33]

Ontarios principal submission is that the
    motion judge erred in holding that the superior courts inherent jurisdiction
    to control its own process enabled him, as Ontarios supervisory judge, to
    participate in concurrent hearings with the other supervisory judges inside or
    outside Ontario to resolve issues under the Settlement Agreement. Ontario
    contends that the Constitution, the common law and legislation prevent the
    exercise of inherent jurisdiction to conduct a hearing outside the judges home
    province.

[34]

There was a great deal of discussion on appeal
    about various ways in which technology could and should be used to resolve the
    jurisdictional question, sparked by the BCCAs decision in
Endean
. For instance, Ontario submits that an Ontario superior court judge
    could conduct a hearing from outside Ontario by video link to Ontario.

[35]

While I will address the technology issue, my
    analysis will focus on the issue of inherent jurisdiction and the application
    of the doctrine in the context of this case. I first address whether a superior
    court judge has authority to sit outside Ontario. To answer this question, I
    will examine if there are any constitutional, common law or statutory barriers
    precluding such an exercise of authority, and I will consider whether the open
    court principle prohibits a hearing outside Ontario. I will then consider
    whether the motion judge exercised his discretionary authority appropriately in
    the circumstances of this case.

[36]

For reasons that I will set out below, I
    disagree with Ontarios assertion that the supervisory judges have no
    jurisdiction to sit together, and that the only way to get around that
    purported impediment is through the use of video technology.

IV.

ANALYSIS

A.

Preliminary Issues

[37]

Before addressing the jurisdictional issue under
    appeal, I will briefly deal with three preliminary issues: (1) whether this
    court has jurisdiction to hear the appeal; (2) whether this court should
    exercise its discretion to hear the appeal even though it is moot; and (3) the
    scope of the appeal.

(1)

Jurisdiction to Hear the Appeal

[38]

The panel asked counsel for submissions on
    whether this court or the Divisional Court has jurisdiction to hear this
    appeal.

[39]

The
Class Proceedings Act
does not address the right of appeal or the appellate route from an
    order made on a motion for directions brought pursuant to the terms of a
    court-approved settlement agreement. As Armstrong J.A. explained in
Locking
    v. Armtec Infrastructure Inc
., 2012 ONCA 774, 299 O.A.C.
    20, at para. 8: [w]here [the
Class Proceedings Act
] does not specifically address the rights and avenues of appeal, s.
    6(1)(b) of the
Courts of Justice Act
governs
    appeals to the Court of Appeal in class proceedings.

[40]

Section 6(1)(b) of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43

provides:

6 (1) An appeal lies to the Court of Appeal from,



(b) a final order of a judge of the Superior Court of
    Justice, except an order referred to in clause 19(1)(a) or an order from which
    an appeal lies to the Divisional Court under another Act.

[41]

If the motion judges order is final, then there
    is a right of appeal to this court, but if his order is interlocutory, then the
    appeal lies to the Divisional Court with leave, pursuant to s. 19(1)(b) of the
Courts
    of Justice Act
.

[42]

The classic statement on the distinction between
    a final and an interlocutory order appears in this courts decision in
Hendrickson
    v. Kallio
, [1932] O.R. 675 (C.A.), at p. 678:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the parties 
    the very subject matter of the litigation, but only some matter collateral. It
    may be final in the sense that it determines the very question raised by the
    application, but it is interlocutory if the merits of the case remain to be
    determined.

[43]

In the context of an ongoing proceeding, an
    order that determines the issue raised on a motion will not be final unless the
    order has the effect of terminating the action or application, or the order resolves
    a substantive claim or defence of the parties: see
Waldman v.
    Thomson Reuters Canada Ltd
., 2015 ONCA 53, [2015] O.J.
    No. 395, at para. 22.

[44]

In the present context, the underlying class
    actions have been resolved by the Settlement Agreement. No claims or defences
    remain to be tried. Accordingly, I must take a somewhat modified approach to
    the classic
Hendrickson v. Kallio
test for
    distinguishing between a final or interlocutory order in the present
    circumstances, where certified national class proceedings have been resolved by
    a judicially-approved settlement agreement and the merits of the parties
    claims and defences do not remain to be determined.

[45]

Here, the role of the courts as conferred by the
    terms of the Settlement Agreement is to implement and enforce the provisions of
    that agreement. Section 1(l) in Article 10.01 of the Settlement Agreement
    permits class counsel to bring an application for advice and directions to the
    supervisory judges. This provision states in relevant part:

1. 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 and the
    Funding Agreement. Without limiting the generality of the foregoing, the Courts
    will:



l. on application of the Administrator, Fund Counsel, the
    Auditors, any Class Action Counsel, the Joint Committee or the Trustee, provide
    advice and direction;

[46]

Although class counsels request for directions
    was styled as a motion rather than an application,
[1]
in my
    view, the essential character of the request for directions is akin to an
    application under r. 14.05(3)(d) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. Rule 14.05(3)(d) states:

14.05 (3) A proceeding may be brought by
    application where these rules authorize the commencement of a proceeding by
    application or where the relief claimed is,



(d) the determination of rights that depend on the
    interpretation of a deed, will, contract or other instrument, or on the
    interpretation of a statute, order in council, regulation or municipal by-law
    or resolution;

[47]

Class counsel posed the following questions for
    consideration by the supervisory judge of the Ontario Superior Court of
    Justice:

1.       Whether
    the judges in Ontario, British Columbia and Quebec (the Courts) supervising
    the January 1, 1986-July 1, 1990 Hepatitis C Settlement Agreement (the
    Agreement) can sit together in the same province, such that some or all are
    not present in their own province, to hear concurrent motions with or,
    alternatively, without a video-link to their own provinces?

2.      Whether video-linked concurrent hearings of the
    Courts sitting in their own provinces are necessary or, alternatively,
    preferable in any or all circumstances?

3.      Whether non-concurrent hearings of the Courts
    sitting in their own provinces are mandatory?

4.      Alternatively, whether the motion brought by
    Class Action Counsel on August 13, 2012 returnable before Chief Justice Winkler
    out of province shall be heard in Toronto on a date to be fixed?

[48]

In the notice of motion, class counsel relied on
    s. 11(2) of the
Courts of Justice Act
, s. 12
    of the
Class Proceedings Act
, and several
    provisions of the
Rules of Civil Procedure
as
    conferring jurisdiction on the supervisory judges to sit together in one
    province.

[49]

Given the nature of and the grounds for the
    relief sought, this motion is analogous  in the sense contemplated by r.
    1.04(2)  to a r. 14.05(3)(d) application seeking the determination of rights
    that depend on the interpretation of a statute, regulation, or contract. Class
    counsel was seeking declaratory relief involving the determination of a
    jurisdictional issue that required interpreting the
Courts of
    Justice Act
, the
Class Proceedings Act
, the
Rules of Civil Procedure
, and
    the Settlement Agreement
.

[50]

In my view, the motion judges task on the
    motion for directions fits comfortably into the r. 14.05(3)(d) mould. The 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.

[51]

The motion judges order disposed of the motion
    on the merits by granting declaratory relief in a form that was consistent with
    the moving partys position. Thus, in my view, the order is final for the same
    reason that an order resolving a Rule 14 application is final even though
    another, quite possibly larger, issue between the parties remains to be
    determined: see
Buck Brothers v. Frontenac Builders
(1994), 19 O.R. (3d) 97 (C.A.), at pp. 100-101.

[52]

I would accordingly hold that this court has
    jurisdiction to hear the appeal pursuant to s. 6(1)(b) of the
Courts
    of Justice Act.

[53]

It is important to note that this decision does
    not stand for the proposition that any appeal from an order of a supervisory
    judge under a national class action settlement agreement will come directly to
    this court. The orders final or interlocutory character will turn on the
    specific order of the supervisory judge acting under a settlement agreement
    within the discrete context of post-settlement litigation.

(2)

Mootness

[54]

The second preliminary issue is mootness.
    Whether the supervisory judges can sit together to hear the claims extension
    motions is no longer a live issue, as the motions have already been heard and
    decided. Accordingly, the issue is whether this court should exercise its
    discretionary authority to hear this appeal even though it is moot.

[55]

The parties say that the court should decide the
    jurisdictional issue because it is likely to arise again in connection with the
    administration of the Settlement Agreement and other pan-Canadian class
    proceedings.

[56]

I agree with the parties. This case, in my view,
    raises an issue that should be resolved because of its national importance and
    the continuing social cost of leaving it unsettled: see
Borowski v.
    Canada (Attorney General)
,
[1989]
    1 S.C.R. 342, at p. 362. Specifically, it is important to resolve whether a
    superior court judge has the option of sitting outside his or her home province
    to facilitate the implementation and enforcement of a national class
    settlement. The failure to resolve this important question may hinder the
    administration of national class action settlements such as this one, which are
    an important vehicle for promoting access to justice, judicial economy and
    behavior modification.

(3)

Scope of the Appeal

[57]

The third preliminary issue is the proper scope
    of this appeal. In oral argument, class counsel urged this court to consider a
    hypothetical scenario in which the supervisory judges, sitting together in one
    location to hear a motion under the Settlement Agreement, must call upon the
    courts coercive powers  for example, the power to compel witnesses and the
    contempt power. Considering such a scenario is necessary, says class counsel,
    to avoid further litigation of jurisdictional disputes.

[58]

That is a hypothetical situation. As I will
    explain later, the courts ability to rely on its inherent jurisdiction must be
    assessed on a case-by-case basis. Without concrete facts, it is impossible to
    make that assessment, and I would decline to decide it.

[59]

Thus, I will confine these reasons to the
    narrower circumstance in which the three supervisory judges sit together to
    adjudicate on a paper record without the need to exercise coercive powers,
    which was the situation considered by the motion judge.

[60]

I will consider whether an Ontario judge can sit
    outside Ontario with his or her supervisory counterparts and also whether the
    two other supervisory judges can sit within Ontario, as the motion judges
    order contemplated both scenarios. I note that Ontario amended its notice of
    appeal to add the related issue of whether the other supervisory judges can sit
    within Ontario. None of the parties object to this added issue, and all parties
    addressed it fully in argument.

[61]

My analysis of the jurisdictional issue proceeds
    in two parts. First, I determine if the motion judge had the discretionary
    authority to order an out-of-province hearing. Second, I consider whether the
    motion judge exercised his discretion appropriately in the circumstances of
    this case.

B.

Jurisdictional Issue

(1)

Did the Motion Judge Have the Discretionary Authority to Order an Out-of-Province
    Hearing?

[62]

In addressing whether the motion judge was
    correct in concluding that he had the discretionary authority to order an
    out-of province hearing, I will first outline in general terms the doctrine of
    inherent jurisdiction. I will then examine whether there are constitutional,
    common law or statutory barriers preventing the motion judge from holding a
    joint hearing inside or outside Ontario. Finally, I will consider the effect of
    the open court principle and whether it precludes a hearing outside Ontario.

(a)

Doctrine of Inherent Jurisdiction

[63]

As this appeal turns on the doctrine of inherent
    jurisdiction, it is important to begin by examining the scope and nature of the
    doctrine.

[64]

The Supreme Court recently described the concept
    of inherent jurisdiction in
Ontario v. Criminal Lawyers Association
    of Ontario
, 2013 SCC 43, [2013] 3 S.C.R. 3.

[65]

Writing for the majority, Karakatsanis J. cited
    the seminal 1970 article by I.H. Jacob, The Inherent Jurisdiction of the
    Court (1970) 23
Curr. Legal Probs.
23. In
    this article, at p. 51, Jacob describes inherent jurisdiction broadly as a
    reserve or fund of powers that may be employed as necessary to do justice:

[T]he inherent jurisdiction of the court may be defined as
    being the reserve or fund of powers, a residual source of powers, which the
    court may draw upon as necessary whenever it is just or equitable to do so, and
    in particular to ensure the observance of the due process of law, to prevent
    improper vexation or oppression, to do justice between the parties and to
    secure a fair trial between them.

[66]

Karakatsanis J., quoting
R v. Caron
, 2011 SCC 5, [2011] 1 S.C.R. 78, adopted Jacobs description of
    inherent jurisdiction, at para. 21:

These powers are derived "not from any statute or rule of
    law, but from the very nature of the court as a superior court of law" to
    enable "the judiciary to uphold, to protect and to fulfil the judicial
    function of administering justice according to law in a regular, orderly and
    effective manner".

This description emphasizes the use
    of inherent powers to permit the court to administer justice effectively.

[67]

While both descriptions suggest inherent
    jurisdiction is broad, Ontario points to paras. 18 and 19 of Karakatsanis J.s
    reasons in
Criminal Lawyers Assn.
for the
    proposition that inherent jurisdiction of the courts is limited to a narrow
    core:

The essential nature and powers of the superior courts are
    constitutionally protected by s. 96 of the
Constitution Act, 1867
.
    Accordingly, the "
core or inherent jurisdiction which is integral to
    their operations ... cannot be removed from the superior courts by either level
    of government, without amending the Constitution
" (
MacMillan
    Bloedel Ltd. v. Simpson
,
[1995] 4
    S.C.R. 725
, at para. 15). The rationale for s. 96 has evolved to
    ensure "the maintenance of the rule of law through the protection of the
    judicial role" (
Reference re Remuneration of Judges of the Provincial
    Court of Prince Edward Island
,
[1997] 3 S.C.R.
    3
("
Provincial Judges Reference
"), at para. 88).

In
MacMillan Bloedel
, a majority of this Court
    described the powers at the core of a superior court's jurisdiction as
    comprising "those powers which are essential to the administration of
    justice and the maintenance of the rule of law" (para. 38), which define
    the court's "essential character" or "immanent attribute"
    (para. 30).
The core is "a very narrow one which includes only
    critically important jurisdictions which are essential to the existence of a
    superior court of inherent jurisdiction and to the preservation of its
    foundational role within our legal system
" (
Reference re
    Amendments to the Residential Tenancies Act (N.S.)
, [1996] 1 S.C.R. 186,
    at para. 56,
per
Lamer C.J.). [Emphasis added.]

[68]

As I read this passage, Karakatsanis J. is
    describing the
core
jurisdiction of a superior
    court, not the courts inherent powers. The concepts of core jurisdiction and
    inherent jurisdiction are distinct. Ontario acknowledged this distinction in
    oral argument.

[69]

As explained by Karakatsanis J., core
    jurisdiction, which comprises only critically important jurisdictions which
    are essential to the existence of a superior court, is narrow and cannot be
    removed without amending the Constitution. Core jurisdiction is limited to
    those powers possessed by superior courts at the time of Confederation: new
    powers or jurisdiction are not part of the core of jurisdiction protected via
    s. 96 [of the Constitution]:
Reference re Young Offenders Act
    (P.E.I.)
, [1991] 1 S.C.R. 252, at p. 271.

[70]

In contrast, inherent jurisdiction provides the
    superior court with a reserve or fund of powers, a residual source of powers
    (Jacob, at p. 51) that may be used to serve four functions: (i) to ensure
    convenience and fairness in legal proceedings; (ii) to thwart actions that
    would render judicial proceedings ineffective; (iii) to prevent abuse of
    process; and (iv) to act in aid of superior courts and in aid or control of
    inferior courts and tribunals: see
MacMillan Bloedel Ltd. v. Simpson
, [1995] 4 S.C.R. 725, at para. 35, citing Keith Mason, The
    Inherent Jurisdiction of the Court (1983), 57 A.L.J. 449, at p. 449.

[71]

By contrast to the constitutionally protected
    core jurisdiction of superior courts, a superior courts inherent powers may be
    limited by statute, as Karakatsanis J. noted in
Criminal Lawyers
    Assn.
, at para. 23
:

It has long been settled that the way in which superior courts
    exercise their powers may be structured by Parliament and the legislatures (see
    MacMillan Bloedel, at para. 78, per McLachlin J., dissenting on other grounds).
    As Jacob notes (at p. 24): "...the court may exercise its inherent
    jurisdiction even in respect of matters which are regulated by statute or by
    rule of court, so long as it can do so
without contravening
any
    statutory provision". [Emphasis in original.]

[72]

Inherent jurisdiction is also limited by the
    institutional roles and capacities that emerge out of our constitutional
    framework and values:
Criminal Lawyers Assn.
,
    at para. 24. For instance, the powers recognized as part of the courts
    inherent jurisdiction are limited by the separation of powers that exists among
    the various players in our constitutional order and by the particular
    institutional capacities that have evolved from that separation:
Criminal
    Lawyers Assn.
, at para. 26.

[73]

Thus, a superior court may exercise its inherent
    jurisdiction on matters regulated by statute but may not contravene any
    statutory provision. A courts exercise of inherent jurisdiction must also
    respect Canadas constitutional framework.

[74]

Within these limits, [n]ovelty has not been
    treated as a barrier to necessary action in exercising inherent jurisdiction:
Caron
, at para. 27.

[75]

With these principles in mind, I turn to the
    application of the doctrine in the context of this case.

(b)

Constitutional Limitations

(i)

Ontarios Submissions

[76]

Ontario offers three reasons the motion judges
    order is constitutionally problematic.

[77]

First, the motion judges order fails to respect
    the federal nature of Canadas court system, which envisions parallel,
    cooperating but distinct court systems with provincial and territorial courts
    sitting in their respective jurisdictions.

[78]

Second, whether Ontarios superior court judges
    should be able to hold hearings outside Ontario (and whether other superior
    court judges should be able to hold hearings in Ontario) is a matter for the
    legislature, not the courts. Relying on the Supreme Courts decision in
Criminal
    Lawyers Assn
., Ontario submits that the courts must
    give sufficient weight to the constitutional responsibilities of the
    legislative and executive branches so as not to upset the balance of roles,
    responsibilities, and capacities that has evolved in our system of governance
    over the course of centuries:
Criminal Lawyers Assn
., at paras. 27-31.

[79]

Third, conducting a hearing in another province
    infringes the sovereignty of that province, especially if the visiting court
    were to attempt to exercise its coercive powers, such as the power to summon
    witnesses or make a contempt order. Ontario asserts that superior courts
    coercive powers are part of their essence as superior courts (
MacMillan
    Bloedel,
at p. 753) and a court cannot sit as a superior
    court without them.

[80]

As I will explain, I am not persuaded that any
    of these constitutional arguments preclude the motion judges order.

(ii)

Federal Nature of Canadas Court Systems

[81]

Canadas parallel, cooperating but distinct
    court systems are grounded in s. 92(14) of the
Constitution Act,
    1867
(U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C.
    1985, App. II, No. 5
.
Section 92(14)
gives the provinces exclusive jurisdiction over the administration
    of justice
in the province
 (emphasis added),
    including the constituting, maintenance, and organization of provincial courts
    in each province.

[82]

Sections 91 and 92 are found in Part VI,
    Distribution of Legislative Powers, in the
Constitution Act
,
1867
.

These sections set out the powers of the federal
    Parliament and the provincial legislatures.

[83]

Ontario also points to other provisions of the
    Constitution that recognize that the superior court of each province is
    distinct from those of the other provinces. For instance, s. 96 provides that
    [t]he Governor General shall appoint the Judges of the Superior, District and
    County Court
in each Province
 (emphasis
    added). And ss. 97 and 98 make it clear that judges of the federally appointed
    courts in any given province shall be selected from the respective Bars of
that
Province (emphasis added).

[84]

I agree that these provisions contemplate a
    federal system with parallel, cooperating but distinct courts. However, I do
    not see how the motion judges order is at odds with these provisions.

[85]

First, I do not see how s. 92(14), which falls
    under the Distribution of Legislative Powers, applies where the legislature
    has failed to legislate.

[86]

Second, the motion judges order contemplated
    that the three supervisory judges act in parallel and cooperatively to decide
    the three claims extension motions. Each supervisory judge would conduct a
    separate hearing to decide the claims extension motion brought in the judges
    home jurisdiction. However, the parallel motions would be conducted in a single
    location to enhance cooperation between the three judges and thus facilitate
    implementation and enforcement of the Settlement Agreement under which the
    supervisory judges have personal and subject matter jurisdiction  an agreement
    to which the federal and all provincial and territorial governments in Canada
    are party. The three orders arising from the claims extension motions would
    issue from the home provinces of the supervisory judges. In my view, such a
    process respects the distinct nature of the courts of each province while
    stimulating the cooperation required to effectively administer the Settlement
    Agreement.

[87]

It is also significant that Ontario has
    effectively conceded that out-of-province hearings are not presumptively
    unconstitutional. In recognizing that out-of-province hearings can be
    authorized by provincial statute, and, indeed, insisting that they must be,
    Ontario has conceded the constitutionality of such hearings. If Ontario has the
    legislative authority to permit out-of-province hearings, there can be nothing
    presumptively unconstitutional about them.

[88]

There is no merit to this first constitutional
    argument.

(iii)

The Respective Roles of Legislatures and Courts

[89]

Ontario submits that the motion judges decision
    does not respect the institutional roles of the legislature and the courts,
    sometimes referred to as the separation of powers. It points to s. 92(14) of
    the Constitution for the proposition that the Constitution grants the
    Legislature of Ontario
exclusive
jurisdiction
    over the administration of justice in the province. In its submission, [i]f
    there is a need to allow the Superior Court to hold hearings outside Ontario,
    that need can only be met by legislative action. Courts should leave major law
    reform to the legislature, says Ontario.

[90]

I agree that it would be desirable for the
    legislature to legislate on national class actions. In particular, I agree with
    the Supreme Courts statement in
Lépine
, at
    para. 57,
that provincial legislatures should pay more
    attention to the framework for national class actions and the problems they
    present.

[91]

However, I do not agree that, where the
    legislature fails to legislate, the courts hands are tied. To borrow the words
    of McLachlin C.J., [a]bsent 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:
Western Canadian Shopping
    Centres
, at para. 34.

[92]

Nor do I agree that the motion judges order
    somehow amounts to major legislative reform that infringes the legislatures
    role. He held that the three supervisory judges had the discretionary authority
    to sit together inside or outside Ontario to hear motions under the Settlement
    Agreement. And he determined that, in the particular circumstances before him,
    it was appropriate to exercise that discretionary authority to permit the
    judges to sit together to hear the claims extension motions. As the motion
    judge noted in his reasons, at para. 52, the motion before him raised a narrow
    procedural issue concerning the physical location of a hearing involving the
    pan-Canadian settlement agreement of the Hepatitis C class actions. I do not
    see how his order on this narrow issue amounts to major law reform.

[93]

I do not agree that the motion judges order
    upsets the balance between the court and the legislature.

(iv)

Sovereignty and Coercive Powers

[94]

Ontario raises a third and related
    constitutional argument. It contends that holding a hearing is a fundamental
    exercise of a provinces sovereignty, and so an Ontario superior court hearing
    a matter in another province infringes that other provinces sovereignty.
    Ontario is particularly concerned about the prospect of a superior court judge
    exercising coercive authority outside his or her home province. It asserts that
    only legislation can authorize such an out-of-province hearing without
    trenching on provincial sovereignty.

[95]

I have already addressed Ontario`s submission
    that legislation is required for a judge to conduct a hearing in another
    province. However, I have not squarely addressed the question of provincial
    sovereignty and the use of coercive powers in another province.

[96]

In my view, the motion that was to have been
    heard in Alberta would not have infringed Albertas sovereignty. It is common
    ground that the supervisory judges had personal and subject matter jurisdiction
    in this case. The parallel motions were paper motions; no witnesses were to be
    called. The exercise of coercive powers was not contemplated. And the motions
    were to be heard in the context of a pan-Canadian Settlement Agreement approved
    by each and every jurisdiction in Canada, including Alberta. In these
    circumstances, I can see no infringement of Albertas sovereignty.

[97]

Ontario submits that it is no answer to say it
    is unlikely a court would need to exercise its coercive powers. Even if such
    powers might not be required, the court must possess coercive powers since,
    without coercive powers, a court is not a superior court. In other words, a
    court cannot be stripped of its core coercive powers.

[98]

I reject this submission. The motion judges
    order does not purport to strip the court of any powers, nor could it. Rather,
    it simply is not contemplated that the court will need to exercise its coercive
    powers in this case.

[99]

The possibility that a visiting court might
    infringe provincial sovereignty by the use of coercive powers  for instance,
    in a hearing involving witnesses  should be evaluated on the facts of a case
    where it is a live issue.

[100]

In conclusion, I reject this ground of appeal. There is no
    constitutional impediment to the motion judges order.

(c)

Common Law Limits

[101]

I now turn to Ontarios common law objections to the motion judges
    exercise of inherent jurisdiction. Ontario asserts that the common law
    prohibits a superior court judge from sitting outside the physical boundaries
    of the judges province of appointment.

[102]

Ontario submits that, going back as far as the
Magna
    Carta
, English courts were precluded at common law from
    sitting outside the boundaries of England. It says the English common law is
    still relevant today because it was received into Ontario law and it has not
    since changed.

[103]

Ontario relies on a number of English cases including
R.
    v. Keyn
(1876), 2 Ex. D. 63. The issue in
Keyn
was whether the English superior courts had jurisdiction over an
    offence committed on a ship less than three miles offshore (the then-limit of
    Englands territorial sea). In concluding that they did not, the majority held
    that the boundaries of English counties lay at the low-water mark. Relying on
    the reasoning in
Keyn
, the Supreme Court of
    Canada subsequently held that common law courts have no jurisdiction over
    waters that lie outside provincial boundaries: see
Reference re
    Offshore Mineral Rights
(1967), 65 D.L.R. (2d) 353.

[104]

Ontario also points to more recent jurisprudence, including the
    BCCAs decision in
Endean
, in which
the court concluded, at para. 47,

that [t]here is no authority from any common law jurisdiction that
    holds that a judge of a court can hold hearings outside his or her territorial
    boundaries. What limited authority that does exist is to the contrary".

[105]

In support of that conclusion, the BCCA accepted that
Ewachniuk

v. Law Society of British Columbia
(1998), 156 D.L.R.
    (4th) 1 (B.C. C.A.), accurately set out the law. At para. 48 of its decision,
    the BCCA excerpted the following passage from para. 31 of Rowles J.A.s reasons
    in
Ewachniuk
:

Extraterritoriality is the projection of authority beyond the
    territory of a state. In Canada, the jurisdiction of the superior courts of the
    provinces is determined internally by the Constitution and externally by the
    boundaries of the provinces. While courts do project their authority beyond
    their boundaries through the exercise of
in personam
jurisdiction,
    domestic courts do not sit outside their boundaries.

[106]

With respect to the BCCA, I disagree with its conclusion that the
    common law precludes a superior court judge from ever sitting outside his or
    her home jurisdiction. Instead, I accept the motion judges analysis and
    conclusion on this point.

[107]

The motion judge first considered the historical jurisdiction of
    English courts to sit outside England. He concluded that restrictions under
    English law were not determinative.

[108]

Instead, the motion judge found the Supreme Courts decision in
Morguard
    Investments Ltd. v. De Savoye
, [1990] 3 S.C.R. 1077,
    instructive. He noted, at para. 23, the courts observations in
Morguard
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.

[109]

And, at para. 25, the motion judge concluded:

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.

[110]

The motion judge noted that the only common law authority that
    speaks to the issue of a superior court judge sitting outside provincial
    boundaries is
Ewachniuk
. He determined it was
    not binding.

[111]

The motion judge pointed out that the central question in
Ewachniuk
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. Whether a superior court judge could sit outside the province was not
    directly before the court. Rowles J.A.s comments concerning the jurisdiction
    of provincial superior courts were therefore
obiter
. The motion judge explained, at para. 30, that Rowles J.A.s
    comments that the jurisdiction of the superior courts of the province is
    determined internally by the Constitution and externally by the boundaries of
    the provinces and that superior courts do not sit outside their boundaries (
Ewachniuk
, at para. 31) were not necessary for the decision and not
    mentioned in the concurring reasons.

[112]

In any event, the motion judge, at para. 31, distinguished
Ewachniuk
: 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. Nor was
    Rowles J.A. 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:
Parsons
, at para. 31.

[113]

The motion judge then turned to common law authority on inherent
    jurisdiction, which he found supported the conclusion that superior courts have
    discretionary authority to sit outside their home provinces as a function of
    their inherent jurisdiction to control their own process. In particular, he
    noted
Fontaine v. Canada (Attorney General)
,
    2012 BCSC 839, [2012] B.C.W.L.D. 8453. In that case, judges of the superior
    courts of Ontario, British Columbia, Québec, Alberta and Saskatchewan sat
    together in Calgary, Alberta to hear a motion for approval in the Indian
    Residential Schools class settlement. The superior courts of Manitoba, Yukon,
    the Norwest Territories and Nunavut linked to the Alberta courtroom by
    telephone conference.

[114]

As previously indicated, I agree with the motion judges analysis
    and conclusion that the common law does not prohibit a superior court judge
    from sitting outside the physical boundaries of the judges province.

[115]

Historical English common law is not determinative of the
    jurisdictional issue before this court. While
Morguard
is also not determinative,
the policy
    reasons reflected in that case

are instructive. The Supreme Courts observations, at para. 35, that
    flexibility serves the ends of "justice, necessity and convenience"
    and that "our courts have not hesitated to cooperate with courts of other
    provinces where necessary to meet the ends of justice", apply with equal
    force here.

[116]

I also agree with the motion judges assessment of
Ewachniuk.
The case is not binding and the comments in question were
obiter
.

[117]

Moreover,
Ewachniuk
and the other
    British Columbia trial decisions cited by the BCCA in
Endean
deal with very different situations than the one before this court.
    For instance,
Endean
referred to two cases in
    which a superior court judge from British Columbia travelled to the U.S. to
    obtain evidence as an examiner or commissioner: see
Endean
, at paras. 50-52.

[118]

Endean
also relied on the decision in
R v. Pilarinos
, 2001 BCSC 1690, 52 W.C.B. (2d) 161, in which Bennett J. concluded
    that it was permissible for a British Columbia judge to issue an authorization
    to intercept private communications between persons in British Columbia while
    the judge was on vacation in Palm Springs.

[119]

Not only are these transnational cases not binding on this court,
    but in my view they do not establish the existence of a clear rule precluding
    superior court judges from sitting in other provinces in all circumstances.

[120]

As noted by the motion judge, a more similar case on the facts to
    the one here is
Fontaine
, which also arose in
    the context of a complex national class action. While the jurisdictional issue
    was not raised in
Fontaine
, it is notable that
    the settlement in the Indian Residential School national class action was
    facilitated by judges sitting together in one location.

[121]

In conclusion, I am not satisfied that there is a common law rule
    precluding the motion judges order.

(d)

Statutory Limits

[122]

Ontario submits that the history of Ontarios court legislation
    makes it clear that Ontarios Superior Court of Justice cannot hold a hearing
    outside of Ontario. In support of this argument, it reviews the history of
    court legislation in Ontario from Confederation to the present day, culminating
    in s. 11(2) of the
Courts of Justice Act
,
    which provides as follows:

The Superior Court of Justice has all the jurisdiction, power
    and authority historically exercised by courts of common law and equity in
    England and Ontario.

[123]

Relying on this provision, Ontario submits that since the English
    and Ontario courts did not historically have the jurisdiction to sit outside
    their respective territories, the Superior Court of Justice is equally
    precluded from sitting outside the boundaries of Ontario.

[124]

Ontario also points to s. 15(1) of the
Courts of Justice
    Act
, saying that it limits the ability of an Ontario
    superior court judge to sit outside Ontario. The section provides that the
    Chief Justice of the Superior Court of Justice shall assign every judge of the
    Superior Court of Justice to a region and may re-assign a judge from one region
    to another.

[125]

Ontario also submits that there are legislative limits on judges
    from other provinces sitting in Ontario.

[126]

I disagree. Although inherent jurisdiction may be limited by
    statutory enactment, the limits must be explicit. As explained by the Supreme
    Court in
Caron
, at para. 34, the inherent
    jurisdiction of the superior courts cannot be cut down by mere inference:

The Crown also relies on various statutes dealing with costs in
    matters pending before the Court of Queen's Bench itself, including the
Court
    of Queen's Bench Act
, R.S.A. 2000, c. C-31, s. 21, the
Judicature Act
,
    R.S.A. 2000, c. J-2, s. 8, and the
Alberta Rules of Court
, Alta. Reg.
    390/68, rr. 600 and 601. Certainly these enactments authorize the award of
    costs in various circumstances, but words of authorization in this connection
    should not be read as words limiting the court's inherent jurisdiction to do
    what is essential "to fulfil the judicial function of administering
    justice according to law in a regular, orderly and effective manner" (Jacob,
    at p. 28).
It would be contrary to all authority to draw a negative
    inference against the inherent jurisdiction of the superior court based on
    "implication" and conjecture about legislative intent
:
Ordon
    Estate v. Grail
, [1998] 3 S.C.R. 437. [Emphasis added.]

[127]

Absent any express statutory limitation, superior courts may draw
    upon their inherent jurisdiction "as necessary whenever it is just or
    equitable to do so" (
Caron
, at para. 24),
    within the limits of that doctrine set out above.

[128]

The existence of legislation on a given matter does not
    automatically oust the inherent jurisdiction of the courts. As Binnie J. noted,

the court may exercise its inherent
    jurisdiction even in respect of matters which are regulated by statute or by
    rule of court, so long as it can do so without contravening any statutory
    provision:
Caron
, at para. 32, quoting Jacob, at p. 24; see also
Glover
    v. Minister of National Revenue
(Glover No. 1) (1980),
    29 O.R. (2d) 392 (C.A.), at pp. 399-400, affd [1981] 2 S.C.R. 561.

[129]

However, as the Supreme Court noted in
Baxter Student
    Housing Ltd. v. College Housing Co-Operative Ltd.
, [1976]
    2 S.C.R. 475, at p. 480, inherent jurisdiction does not empower a judge to
    make an order negating the unambiguous expression of the legislative will.

[130]

In my view, the provisions relied upon by Ontario do not constitute
    an unambiguous expression of the legislative will (
Baxter Student
    Housing Ltd.
, at p. 480) regarding hearing location.

[131]

As a matter of statutory interpretation, s. 11(2) of the
Courts
    of Justice Act
is inclusive, not exclusive. It does not
    say the Superior Court has
only
the
    jurisdiction historically exercised by the courts of England and Ontario.
    Rather, it says the Superior Court has
all
the
    jurisdiction historically exercised by those courts.

[132]

To accept Ontarios argument would freeze in time the inherent
    jurisdiction of the Superior Court. That cannot be correct. Limiting inherent
    jurisdiction to past practice is inconsistent with the very nature of inherent
    jurisdiction, which is to allow the court to control and regulate its process
    as the need arises. As Jacob wrote, at p. 23, [t]he inherent jurisdiction of
    the court may be invoked in an apparently inexhaustible variety of
    circumstances and may be exercised in different ways. Like Binnie J., I agree
    with this analysis:
Caron
, at para. 29.

[133]

And, as observed above, the Supreme Court has made it clear that
    novelty is not a barrier to necessary action: see
Caron
, at para. 27.

[134]

Furthermore, I do not see how s. 15(1) of the
Courts of
    Justice Act
precludes the motion judges order. In
    Ontarios submission, s. 15(1), read in conjunction with other provisions
    defining region, limits Ontario judges to sitting within Ontario.

[135]

As I read s. 15(1), it does not speak to where a superior court
    judge may conduct a hearing. Rather, it requires the Chief Justice of the
    Superior Court of Justice to assign or allocate judges to regions throughout
    Ontario. In my view, the motion judges order does not contravene this
    provision.

[136]

Finally, Ontario points to a number of provisions in the
Courts
    of Justice Act
and rules under the Act in support of its
    argument that the Legislature has not authorized other provinces courts to
    hold hearings in Ontario. It says that the provisions do not contemplate that
    other courts might sit in Ontario. In particular, it points to various
    provisions it says preclude courts from outside Ontario from exercising
    coercive powers within Ontario.

[137]

In my view, Ontarios argument on this point ignores the principle
    that the court may exercise its inherent jurisdiction even in respect of
    matters which are regulated by statute or by rule of court, so long as it can
    do so without contravening any statutory provision:
Caron
, at para. 32. In this case, I do not see how permitting British
    Columbias and Québecs supervisory judges to conduct a joint hearing with
    Ontarios supervisory judge on a paper motion would contravene Ontario law.

[138]

Accordingly, I would not give effect to these statutory arguments.

(e)

Open Court Principle

[139]

Ontario submits the open court principle precludes an Ontario judge
    from conducting a hearing outside Ontario. I disagree.

[140]

Open justice is fundamental to our justice system. The open court
    principle is a hallmark of a democratic society which has long been
    recognized as a cornerstone of the common law:
Vancouver Sun (Re)
, 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-24.

[141]

Open courts allow Canadians to observe that justice is administered
    in a non-arbitrary manner, according to the rule of law:
Canadian
    Broadcasting Corp. v. New Brunswick (Attorney General)
,
    [1996] 3 S.C.R. 480, at para. 22. And [a]n open court is more likely to be an
    independent and impartial court:
Named Person v. Vancouver Sun
, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 32. Finally, the
    principle gains importance from its clear nexus with freedom of expression,
    enshrined in s. 2(b) of the
Charter
: see
Edmonton
    Journal (The) v. Alberta (Attorney General)
, [1989] 2
    S.C.R. 1326, at pp. 1337-40. The freedom of the press to attend and report on
    court proceedings is core to the constitutional nature of the open court
    principle: see
Edmonton Journal
, at pp.
    1339-40.

[142]

But the principle of open courts is not absolute. The principle does
    not guarantee a right to be physically present in the courtroom: see
Canadian
    Broadcasting
, at para. 27. And the open court principle
    itself must yield to circumstances that would render the proper administration
    of justice unworkable:
Canadian Broadcasting
,
    at
para. 29.

[143]

With these principles and functions of open justice in mind, I turn
    to the motion judges order. The order  excerpted above at para. 25  has two
    parts. Part 1 of the order concerns whether a judge has the
discretionary
    authority
to direct an out-of-province hearing. Part 2
    concerns the
exercise
of the motion judges
    discretion.

[144]

Part 1 directs that a judge of Ontarios Superior Court of Justice
    has the discretionary authority to sit outside Ontario without the necessity
    of a video-conference link to a court room in Ontario. While Part 1 of the
    order directs that a video link may not be necessary, Part 2 does not preclude
    a video link if class counsel or the public asks for a link. Therefore, when
    both parts of the order are read together, it becomes clear that the presence
    or absence of a video link remains
in the judges discretion
, to be determined on a case-by-case basis. What is equally clear is
    that, according to the motion judge, the discretionary authority to order an
    out-of-province hearing is not contingent on whether a video link is used.

[145]

I agree with the motion judge. The courts discretionary authority
    to hold an out-of-province hearing does not depend on the presence of a video
    link. I say this for three primary reasons.

[146]

First, out-of-province hearings would presumably take place in a
    courtroom open to the public, thereby preserving the cleansing effect public
    scrutiny has on the legitimacy of legal proceedings. A core tenet of the open
    court principle would remain unaffected.

[147]

Second, the media would still be free to report on what occurred at
    the hearing. The proliferation of online news media has helped Canadians stay
    informed about matters taking place across the nation. As the Supreme Court
    observed in
Edmonton Journal
, at p. 1340
, [i]t is only through the press that most individuals can really
    learn of what is transpiring in the courts. Therefore, Canadians would still
    have the opportunity to ensure that justice is administered in a non-arbitrary
    manner, according to the rule of law:
Canadian Broadcasting,
at para. 22. The driving factor behind the proximity between open
    justice and freedom of expression would be preserved.

[148]

Third, as I explain above, the open court principle does not
    guarantee the right to be physically present in the courtroom. And the
    principle must yield when its strict application would render the
    administration of justice unworkable. In this way, the open court principle
    does not serve as an automatic bar to out-of-province hearings. Instead, as I
    discuss below, the principle is an important factor to consider when a judge
    exercises his or her discretion to direct the precise contours of an
    out-of-province hearing.

[149]

The open court principle, properly understood, does not preclude an
    Ontario judge from conducting a hearing outside Ontario.

(f)

Conclusion

[150]

Having determined there are no constitutional, common law or
    statutory barriers to employing the inherent powers of the court to conduct an
    out-of-province hearing  and having addressed the effect of the open court
    principle  I conclude the motion judge was correct in determining the Ontario
    supervising judge had the authority to sit with his judicial supervisory
    counterparts inside or outside Ontario to hear motions under the Settlement
    Agreement.

[151]

I now turn to whether he properly exercised that discretionary
    authority in the circumstances of this case.

(2)

Did the Motion Judge Properly Exercise His Discretionary Authority?

[152]

Ontario submits that even if the Superior Court of Justice has
    jurisdiction to hold a hearing outside Ontario, it was not appropriate to
    permit such a hearing in this case. The motion judge, says Ontario, failed to
    give sufficient weight to a number of factors, including the open court
    principle and the availability of alternative solutions such as
    video-conferencing.

[153]

To repeat what I said earlier, there is no reason to interfere with
    the motion judges discretionary decision that it was appropriate in the
    circumstances to permit the Ontario supervisory judge to sit inside or outside
    of Ontario with the other supervisory judges to resolve the claims extension
    motions.

[154]

Before turning to his decision, I note that a discretionary decision
    of a motion judge in a class proceeding is entitled to significant deference
    from this court. [A discretionary decision in a class proceeding] may only be
    set aside if it is based on an error of law, a palpable and overriding error of
    fact, the consideration of irrelevant factors or the omission of factors that
    ought to have been considered, or if the decision was unreasonable:
1250264
    Ontario Inc. v. Pet Valu Canada Inc.
, 2013 ONCA 279, 115
    O.R. (3d) 653, at para. 40.

[155]

The motion judge recognized that inherent jurisdiction fulfills a
    number of functions, including ensuring convenience and fairness in legal proceedings
    and thwarting actions that would render judicial proceedings ineffective.
    Consistent with those functions, he noted, at para. 38, that inherent
    jurisdiction permits a court to fashion procedures to facilitate the efficient
    and effective resolution of issues encountered in implementing a pan-Canadian
    settlement agreement. He recognized, at para. 43, that while [a] court should
    exercise its discretion to hold a hearing outside its home province sparingly,
    the interests of justice may require a court to exercise that discretion in
    certain situations. In the class actions context, the recognized goals of
    achieving judicial economy and enhancing access to justice are relevant
    factors in determining whether it is appropriate for a court to hold a hearing
    outside its home province:
Parsons
, at para.
    43.

[156]

In assessing whether it would be appropriate for the court to
    exercise its discretionary authority to sit outside Ontario, the motion judge
    applied the above principles to the facts before him. Specifically, the motion
    judge considered the following circumstances of this case:

1.

The claims
    extension motions arose in the context of a complex pan-national class action.

2.

The supervisory
    judges had subject matter and personal jurisdiction over the proceeding  a scenario
    that occurs infrequently.

3.

Under the terms
    of the Settlement Agreement, the supervisory courts must issue orders without
    material differences for the orders to have any effect.

4.

Allowing the
    supervisory judges to sit together would ensure they receive the same oral and
    written submissions and would permit them to confer directly. It would thus
    facilitate consistent judgments and save expense and valuable resources

5.

The risk of
    inconsistent judgments is real, not hypothetical.

6.

Alternative
    proposals would not be as effective. For instance, the motion judge noted at
    para. 48, the use of video-conferencing technology to permit concurrent
    proceedings would not offer the equivalent procedural advantages of holding a
    hearing before all the supervisory judges in one location.

7.

Class counsel
    had not requested a video link to an Ontario courtroom on behalf of the
    plaintiffs. Therefore, a video link was not required in the circumstances to
    respect the open court principle.

[157]

As noted above, Ontario takes issue with the motion judges weighing
    of the last two factors: the availability of the video-conferencing option and
    the open court principle.

[158]

In Ontarios submission, the motion judge failed to give sufficient
    weight to the video-conferencing option. The motion judge considered a proposal
    of three concurrent hearings in three separate locations: British Columbia,
    Ontario and Québec. Video-conferencing would connect the three courtrooms.

[159]

Ontario submits that while inherent jurisdiction may be exercised in
    a wide variety of circumstances, it may only be exercised to the extent
    necessary. In this case, the motion judge erred because it was not necessary to
    sit outside Ontario without a video link back to an Ontario courtroom.

[160]

On appeal, the interveners also suggest it was unnecessary for the
    motion judge to have granted the order he did since, based on
Endean
, it was possible for the three judges to physically meet outside
    Ontario and yet still hold hearings in their home province by broadcasting the
    proceedings to open courtrooms in each province.

[161]

I accept that when inherent jurisdiction is relied upon it must be
    necessary to address the specific and exceptional circumstances of the case:
Criminal
    Lawyers Assn.
, at para. 47. Deciding whether the case at
    hand presents such specific and exceptional circumstances falls within the
    motion judges discretionary authority. Here, in assessing whether to exercise
    his discretionary authority, the motion judge considered whether the
    alternative proposal advanced by Ontario of using video-conferencing technology
    to link the three judges sitting in different locations would be a satisfactory
    alternative. In other words, he considered whether it was necessary to exercise
    his discretionary authority to permit the court to sit outside Ontario or
    whether another option would suffice.

[162]

He concluded, at para. 48, that the video-conference alternative
    suffered from technical and logistical constraints. He found that
    video-conferencing technology does not offer the equivalent procedural
    advantage of holding a hearing before all the supervisory judges in one
    location:
Parsons
, at para. 48. In my view,
    there is no reason for this court to interfere with that finding. As
    acknowledged in
Criminal Lawyers Assn
.,
    inherent powers enable judges to administer justice in a regular, orderly and
    effective manner. Here, the motion judge considered whether the proposed
    alternative would be effective but concluded that it would not be.

[163]

In my view, it is not for this court to second guess that finding
    made by a judge with considerable experience in managing complex class action
    proceedings. His decision was based upon the record before him and no one has
    pointed this court to any palpable and overriding error of fact made by him. Nor
    has anyone satisfied me that his decision, in all the circumstances of this
    case, is unreasonable.

[164]

The motion judge did not have the opportunity to consider the BCCAs
    alternative solution presented in
Endean

    namely, that the three supervisory judges could sit together in one location
    but still each hold hearings in their home province via video link  as that
    idea was not presented to him.

[165]

With respect to the BCCA, I fail to see how the mere presence of a video
    link resolves the jurisdictional issue before this court. The BCCA did not
    point to any authority for the proposition that a hearing is deemed to be in
    the province of British Columbia so long as (1) there is an audio or video link
    to an open courtroom in British Columbia and (2) counsel and other participants
    have the option of attending at a courtroom in British Columbia.

[166]

Not only has the BCCA not pointed to authority for its novel idea
    but I am not convinced its proposal would necessarily resolve the practical
    problems identified by the motion judge. If participants were to elect to
    remain in their home province, the courts would still need to confront many of
    the same technical and logistical difficulties identified by the motion
    judge.

[167]

On the other hand, if the participants were to all attend in one
    location, the courts would be accepting what amounts to a legal fiction  that
    a hearings physical location (i.e. the courtroom where the parties and judges
    are located) can be different than its deemed location (i.e. the courtroom
    receiving the video signal). In my view, there is no need to resort to such a
    legal fiction given the courts inherent jurisdiction to control its own
    process.

[168]

Turning to the open court principle, Ontario submits the motion
    judge erred in focusing on the interests of class members rather than on the
    interests of Ontarians as a whole. Ontario points to para. 50 of his reasons:

Class counsel consented on behalf of all class members to the
    hearing being conducted in another province. This is a complete answer to
    Ontarios concerns that the open court principle is imperiled by holding the
    hearing outside of Ontario.

[169]

And, at para. 51, the motion judge commented:

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.

[170]

I agree that the motion judge erred in focusing exclusively on the
    interests of class members. The open court principle requires Ontario courts to
    consider the interests of all Ontarians, not just those of a limited subset.
    However, as I will explain, I see no reason to interfere with the motion
    judges decision.

[171]

As previously mentioned, Part 1 of the motion judges order directs
    that an Ontario judge has the
discretionary authority
to order an out-of-province hearing without the necessity of a
    video-conference link to a courtroom in Ontario. Part 2 of the motion judges
    order  the part of the order concerning the actual
exercise
of the motion judges discretion  does not preclude a video link
    if class counsel or the public requests one.

[172]

An important factor for an Ontario judge to consider when ordering
    an out-of-province hearing is the effect the use of a video link will have on
    the ability of Ontarians to know what transpired in the courtroom. I reiterate
    that although a courts inherent jurisdiction to order an out-of-province
    hearing is not dependent on the presence of a video link, the effect the presence
    or absence of a video link has on open justice remains an important factor to
    consider in exercising the courts inherent power in each case.

[173]

The motion judges order does not preclude the supervisory judges
    from considering this important factor.

[174]

Before concluding I wish to briefly respond to my colleague,
    Juriansz J.A.s reading of s. 135(1) of the
Courts of Justice Act.
He says this section requires that the hearing of the Ontario
    claims extension motion must be held in an Ontario courtroom open to the
    Ontario public. He concludes, however, that a hearing linked by video to an
    Ontario courtroom is held in Ontario even if the judge sits outside of Ontario.
    The motion judge erred, my colleague says, in failing to order a video link
    between the out-of-province sitting and an Ontario courtroom.

[175]

With respect, I do not agree that s. 135(1) requires that the
    hearing take place in an Ontario courtroom. To compel the Ontario judge to hear
    the claims extension motion in an Ontario courtroom, s. 135(1) must either
    limit the superior courts inherent jurisdiction or constrain the motion
    judges discretion such that the motion judge erred in failing to order a video
    link to an Ontario courtroom. In my view, s. 135(1) does neither.

[176]

As I explained earlier, the court may exercise its inherent
    jurisdiction even in respect of matters regulated by statute or by a rule of
    court so long as it can do so without contravening any statutory provision.

[177]

Section 135(1) requires that, subject to subsection (2), all court
    hearings shall be open to the public.

[178]

This court has interpreted s. 135(1) in
Palkowski v.
    Ivancic
, 2009 ONCA 705, 100 O.R. (3d) 89. As Juriansz
    J.A. noted at para. 23 of
Palkowski
, s. 135
    is the embodiment of the open court principle.

[179]

I discussed the purposes of the open court principle above, which
    include allowing Canadians to observe that justice is administered in a fair
    manner. I agree that open justice is fundamental to our justice system. I do
    not agree, however, that the open court principle dictates the geographic
    location in which a hearing is held. In a country as large as Canada, the
    reality is that litigants and other members of the public may have to travel
    considerable distances to attend a court hearing. Even within the province of
    Ontario, a litigant or member of the public from Ontario may have to travel a
    considerable distance to attend a court hearing within the province. In my
    view, that does not offend the principle that courts be open to members of the
    public.

[180]

Nor, in my view, does the wording of s. 135 dictate that to be open
    to the public the hearing must be located within Ontario. My colleague
    effectively reads words into s. 135(1) that are not there. He reads the section
    as saying that all court hearings shall be open to the public at a location in
    Ontario.

[181]

While the Ontario public (or some segment of it) may find it more
    difficult to access an out-of-province hearing, a hearing held in an open
    courtroom elsewhere in Canada is no less open to the Ontario public.

[182]

In other words, s. 135(1) does not preclude an Ontario judge from
    exercising inherent jurisdiction to sit outside the province.

[183]

Nor does s. 135 change my view that there is no reason to interfere
    with the motion judges discretionary decision to permit the supervisory judge
    to sit outside Ontario without the necessity of a video link in the
    circumstances of this case. As is evident in paras. 48-51 of his reasons, the
    motion judge considered the possibility of linking courtrooms through
    video-conferencing technology. The motion judge did not exclude the Ontario public
    either physically or by refusing a member of the publics request for a video link.

[184]

His decision is consistent with this courts decision in
Palkowski
. There, this court held that there was no breach of s. 135(1) where
    no one who wanted to be present in the chambers where the motion was held was
    excluded: para. 77. Here, the motion judge did not refuse any public request
    for video access to the hearing. Nor is there any suggestion that the joint
    hearing was to be heard anywhere other than in an open courtroom.

[185]

On the evidence in the record, the motion judge acted reasonably and
    within his discretion in not ordering a video link. There is no reason to
    interfere with his discretionary decision.

DISPOSITION

[186]

For these reasons, I would dismiss the appeal and request that, if
    any party is seeking costs, it advise the panel.

H.S. LaForme J.A.


Juriansz J.A. (dissenting in part):

[187]

I have read the carefully prepared and clearly written reasons of
    LaForme J.A. and find myself in disagreement. I would conclude that this court
    lacks jurisdiction to determine the appeal because the order of the motion
    judge is interlocutory.

[188]

As the majority decides that the court does have jurisdiction to
    determine the appeal, I deal with the other issues. In regard to the mootness
    issue, I agree with LaForme J.A. that the court should exercise its discretion
    to decide this appeal. On the merits, I would allow the appeal.

[189]

I rely on LaForme J.A.s able review of the facts and turn directly
    to the issues.

I.

The Motion Judges Order is Interlocutory

[190]

Unfortunately, the question whether the order under appeal is final
    or interlocutory was not addressed until late in the day when raised by the
    court. However, notwithstanding that the parties have invested much time and
    resources in preparing and arguing a complex appeal before the court, the court
    is obliged to remain within its statutory jurisdiction. I am of the view that
    the order under appeal is an interlocutory order and that this court lacks
    jurisdiction to hear the appeal.

[191]

In response to the courts request for submissions concerning its
    jurisdiction to hear this appeal under s. 6(1)(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, the Attorneys General
    of Ontario and Canada, class counsel, counsel for the interveners, and fund
    counsel all took the position that the motion judges order is final.

[192]

Counsel urges the court to find that the order in this case is final
    because it finally disposed of a substantive jurisdictional challenge to the
    power of a judge of the Superior Court to hold a hearing outside Ontario. In
    addition, the Attorney General of Ontario contends that the order finally
    determined the substantive legal question of whether Ontario law permits the
    courts of other jurisdictions to hold hearings in Ontario without the
    authorization of the Ontario legislature.

[193]

Counsel point to case law from this court establishing that orders
    dismissing challenges to the Superior Courts jurisdiction over a proceeding
    based on an alleged lack of subject matter or personal jurisdiction are final
    orders: see,
e.g
.,
Manos Foods
    International Inc. v. Coca-Cola Ltd.
(1999), 180 D.L.R.
    (4th) 309, at paras. 4-5;
Abbott v. Collins
(2002), 62 O.R. (3d) 99, at paras. 5-6;
M.J. Jones Inc. v. Kingsway
    General Insurance Co.
(2003), 68 O.R. (3d) 131, at paras.
    7-10, appeal to S.C.C. discontinued December 23, 2004;
Smith Estate
    v. National Money Mart Co
., 2008 ONCA 746, 92 O.R. (3d)
    641, at paras. 30, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 535;
Carmen
    Alfano Family Trust (Trustee of) v. Piersanti
, 2012 ONCA
    442, at paras. 8-12.

[194]

In these cases, the court has held that an order dismissing a motion
    challenging the subject matter jurisdiction of the Superior Court of Justice is
    final. Similarly, this court has held that a motion challenging the courts
    personal jurisdiction over a proceeding is the equivalent of the assertion of
    a substantive defence to the action, and hence an order dismissing such a
    motion is final: see
M.J. Jones Inc.
, at para.
    10. In these instances, the order in question resolved an issue that was raised
    by way of a defence to the action and thus determined a substantive right of
    the parties to the litigation.

[195]

I do not accept the analogy that counsel draws between the order
    under appeal and orders disposing of motions challenging the subject matter or
    territorial jurisdiction of the Superior Court of Justice. The order in this
    case does not affect any claims or defences of the parties and has no effect on
    the merits of any litigation whatsoever. Indeed, the order says nothing in
    relation to the substantive rights of the parties. Rather, it relates to the
    jurisdiction of a judge of the Superior Court of Justice to sit in a location
    outside Ontario.

[196]

The test to determine whether an order is final or interlocutory for
    the purpose of s. 6(1)(b) of the
Courts of Justice Act,
is set out in
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.), at p. 678:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the parties 
    the very subject matter of the litigation, but only some matter collateral. It
    may be final in the sense that it determines the very question raised by the
    application, but it is interlocutory if the merits of the case remain to be determined.

[197]

Justice LaForme formulates a different and novel approach to find
    that this court has jurisdiction based on s. 6(1)(b) of the
Courts
    of Justice Act
. He states it is necessary to depart from
    the application of the well-established
Hendrickson
test and to adopt a somewhat modified approach because, in this
    case, the action has been settled and no claims or defences remain to be tried.
    He suggests that in this case, it is appropriate to characterize the motion for
    directions as being akin to an application under rule 14.05(3)(d) of the
Rules
    of Civil Procedure
. That rule permits an application
    seeking the determination of rights that depend on the interpretation of a
    statute or regulation.

[198]

In making that characterization, he suggests that the motion is like
    a stand-alone application requiring a determination generally as to whether the
    supervisory judges could sit together out of province to hear motions arising
    under the settlement agreement concurrently. He concludes the motion judges
    order is final because it determined the merits of the application before him
    by granting the relief that the moving parties sought.

[199]

In my view, LaForme J.A.s departure from the traditional test and
    resort to rule 14.05(3)(d) is misplaced.

[200]

For one, the motion for directions was not akin to a freestanding
    motion to determine whether the court had jurisdiction to sit outside the
    province to hear hypothetical future motions. Rather, the motion for directions
    was connected to a specific and pending dispute  the claims extension motion.
    As LaForme J.A. acknowledges at para. 18 of his reasons, the order under appeal
    arose from a motion for directions stemming from previous motions filed by
    class counsel on August 13, 2012 seeking approval of a proposed protocol that would
    extend the deadline for filing first claims for benefits from the settlement
    funds (claims extension motions). Since article 10.01(2) of the Settlement
    Agreement requires consensus from the supervisory judges before an order can
    take effect, class counsel proposed that the supervisory judges sit together in
    Edmonton, Alberta to hear the claims extension motions in order to facilitate
    consensus. The Attorney General of Ontario objected to the Ontario supervisory
    judge sitting outside the territorial boundaries of the province of Ontario and
    class counsel brought the motion for directions.

[201]

The motion for directions specifically referred to the claims
    extension motion. While the questions whether the three judges could sit
    together out of province are worded generally, the alternative question posed
    was whether the motion dated August 13, 2012 returnable before Chief Justice
    Winkler out of province shall be heard in Toronto on a date to be fixed?

[202]

In his reasons on the motion for directions, the motion judge
    describes the claims extension motion in some detail and recounts how it led to
    the motion for directions. In his reasons he refers to it as [t]he underlying
    motion before this court. His reasons for concluding the court should exercise
    its discretion to sit outside the province focus on that underlying motion.
    Chief Justice Bauman, who heard the equivalent proceeding in British Columbia
    (which was brought by way of an application rather than a motion), referred to
    the underlying application three times:
Endean v. Canadian Red
    Cross Society,
2013 BCSC 1074, revd 2014 BCCA 61, 59
    B.C.L.R. (5th) 113 at paras. 14, 24 and 25. The British Columbia Court of
    Appeal also referred to that proceeding as the underlying application:
Endean
    v. Canadian Red Cross Society,
2014 BCCA 61, 59 B.C.L.R.
    (5th) 113 at para. 41.

[203]

Thus, I infer that the motion for directions was advanced on the
    basis that the questions posed relate to the location for the hearing of the
    claims extension motion and that the motion judge considered the issue in that
    context. He was not asked to, nor did he consider, the issues that could
    potentially arise on a motion that involved the hearing of
viva voce
evidence, such as whether the court could employ its coercive
    powers while sitting outside its home province.

[204]

Considering the motion for directions in context, it seems to me
    inescapable that the motion for directions was not akin to a freestanding
    application. Rather, it was an interlocutory motion and the claims extension
    motion was the underlying proceeding. The real matter in dispute between the
    parties under the
Hendrickson
test was
    whether the court should extend the deadline for filing first claims. The
    decision on the motion for directions left the merits of that matter to be determined.
    The decision simply determined the issue of where the court could sit to hear
    the real matter in dispute.

[205]

In this way, this case is distinguishable from
Fontaine
    v. Canada (Attorney General),
2012 BCSC 839.
Fontaine
involved an appeal from a motion related to the implementation of a
    class action settlement. The real matter in dispute was whether counsel had a
    right of appeal from the Chief Adjudicators decision regarding the fairness
    and reasonableness of legal fees charged. The decision of the motion judge
    finally determined that question. The equivalent decision in this case would be
    the decision on the claims extension motion.

[206]

Second, in my view, the relief claimed in the motion for directions
    could not have been claimed in an application under rule 14.05(3)(d). Rule
    14.05(3)(d) permits an application seeking the determination of
rights
that depend on the interpretation of a statute, regulation or
    contract. It provides:

14.05 (3) A proceeding may be brought by application
    where these rules authorize the commencement of a proceeding by application or
    where the relief claimed is,



(d)
the determination of rights
that depend
    on the interpretation of a deed, will, contract or other instrument, or on the
    interpretation of a statute, order in council, regulation or municipal by-law
    or resolution; [Emphasis added.]

[207]

Justice LaForme states at para. 49 of his reasons: Class counsel
    was seeking declaratory relief involving the determination of a jurisdictional
    issue that required interpreting the
Courts of Justice Act
, the
Class Proceedings Act
, the
Rules
    of Civil Procedure
, and the Settlement Agreement.
    However, raising the interpretation of a statute or contract is not enough to
    make rule 14.05(3)(d) available. A claim for the determination of rights is
    required. While the motion for directions determined an important issue
    disputed by the parties, it did not determine their rights. It simply
    determined the courts jurisdiction to sit outside the province to determine
    their rights.

[208]

Third, the
Hendrickson
test can
    just as easily be applied when the action has been resolved. The focus of the
    inquiry will simply shift to the real issue in dispute between the parties and
    to whether the order under appeal finally determined that issue. As pointed out
    above, in this case the real issue in dispute between the parties was whether
    the deadline for filing first claims could be extended. The motion for
    directions did not resolve that issue.

[209]

I would conclude the motion judges decision is interlocutory and
    this court is without jurisdiction to hear the appeal. I fear that abandoning
    the traditional test in favour of a modified approach will lead to greater
    uncertainty in an already unwieldy area of jurisprudence.

[210]

I would quash the appeal. However, as the court has decided it has
    jurisdiction over the appeal, I proceed to the other issues.

II.

Mootness

[211]

I agree with LaForme J.A. that the court should exercise its
    discretion to decide this moot appeal even though the courts decision is
    narrowly based on the facts of the claims extensions motion and will not
    eliminate the need for another motion in these proceedings. The matter has
    already been fully argued and considered by the court. The courts decision,
    though limited, will have application to future motions in these or other
    proceedings that involve only argument by cooperating counsel on a paper record
    without any recourse to the courts coercive powers.

III.

The Merits of the Appeal

[212]

Like LaForme J.A., I limit my analysis to facts that were before the
    motion judge. That motion involved the three supervisory judges sitting
    together to adjudicate on a paper record without the need to exercise coercive
    powers. As LaForme J.A. says at para. 58, this court should not consider
    hypothetical situations, which may or may not arise.

[213]

I agree with LaForme J.A. that the motion judge erred in law by
    failing to consider the statutory right of the public to attend the hearing of
    the claims extension motion. Section 135 of the
Courts of Justice
    Act
provides:

135.(1) Subject to subsection (2) and rules of court, all court
    hearings shall be open to the public.

Exception

(2) The court may order the public to be excluded from a
    hearing where the possibility of serious harm or injustice to any person
    justifies a departure from the general principle that court hearings should be
    open to the public.

[214]

The legislature has stipulated that all court hearings shall be
    open to the public. No matter the extent and nature of the courts
    jurisdiction, the court must comply with this provision. The court can only
    exclude the public when there is the possibility of serious harm or injustice
    to any person. This exception does not apply in this case.

[215]

Justice LaForme takes the view that s. 135 is satisfied if the
    claims extension motion held out of province is open to the Ontario public. I
    take a different view. Given that the
Courts of Justice Act
is an enactment of the Ontario legislature, I consider it evident
    that s. 135 applies to the Ontario public. The obvious intent of the Ontario
    legislature is to guarantee the Ontario public the
prima facie
right to attend all court hearings of Ontario courts. In my view
    the statute does not contemplate that the Ontario public must travel to another
    province in order to exercise the right to attend the hearing. For the
    statutory right to be meaningful, it is necessary that the Ontario public be
    able to attend the hearing at an Ontario courtroom. As Goepel J.A. observed at
    para. 69. of
Endean,
As a general rule, any
    member of the [British Columbia] public interested in a hearing should be able
    to attend in a courtroom in British Columbia to do so. The same rule applies
    to members of the Ontario public interested in the claims extension motion.

[216]

Consequently, I would conclude the hearing of the Ontario claims
    extension motion must be held in an Ontario courtroom open to the Ontario
    public. However, as I explain, that conclusion does not prevent class counsel
    from effectively achieving the result they desire.

[217]

At the hearing before the motion judge, the Attorney General of
    Ontario suggested that the motion could proceed by way video conference under
    rule 1.08. The proposal envisaged video-linked concurrent hearings of the three
    supervisory judges sitting in their own provinces. The motion judge rejected
    this proposal because, in his view, 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: at para. 48. He said, 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: at para. 48. He was entitled to this view, although one might
    disagree with this assessment of the effectiveness and reliability of the
    rapidly improving technology available.

[218]

However, the motion judge did not consider an arrangement where the
    Ontario judge would be at a location outside Ontario with counsel, and both
    judge and counsel would appear remotely in an Ontario courtroom by way of video
    conference. Such an arrangement would not interfere with the flow of exchange
    between bench and counsel that concerned the motion judge.

[219]

In my view, such an arrangement is permitted by rule 1.08, which is
    reproduced below. There is nothing in the wording of the rule to prevent a
    judge, as well as counsel or witnesses, from appearing in the courtroom
    remotely. The rule permits all or part of a motion to be conducted by video
    conference. The word all suggests the entire motion could be conducted this
    way.

[220]

This is the view the British Columbia Court of Appeal took in
Endean
. The court held at para. 82: There is, however, no objection to a
    judge who is not personally present in [British Columbia] conducting a hearing
    that takes place in a British Columbia courtroom by telephone, video conference
    or other communication medium.

[221]

Rule 1.08 is comprehensive and deals with a range of possibilities.
    The motion can be conducted by video conference on the consent of the parties:
    rule 1.08(2). If the parties do not consent, the court can direct a video
    conference on motion or on its own initiative: rule 1.08(3). Moreover, if the
    facilities provided by the court are thought to be inadequate, the court may
    permit or even direct a party to make the necessary arrangements: rule 1.08(6).
    The obligation of making the necessary arrangements would generally not be a
    burden to the parties in a national class action.

[222]

Justice LaForme identifies a potential problem with this proposed
    arrangement. He foresees that some counsel may elect to remain in their home
    province rather than travelling to the location where the judge is physically
    present. This raises the question whether the court could order all the parties
    to appear at the remote location outside the province. This, of course, is even
    a bigger concern if the motion were returnable outside the province. If class
    counsel served a motion returnable outside the province would all opposing counsel
    be obligated to appear without a court order?

[223]

We need not decide these questions on this appeal. Counsel are
    unanimous that the underlying motion would not require the use of any of the
    courts coercive powers. Justice LaForme proceeds on that basis and so do I.

[224]

The other aspect of the process that class counsel wish to achieve
    is not controversial. It is clear there is no impediment to an Ontario judge
    sitting together with judges of other courts while hearing a motion. The
    commercial court in Toronto conducts joint hearings with other courts as a
    matter of routine: see
Nortel Networks Corp. (Re),
2011 ONSC 3805. Thus, I see no reason why the Ontario supervisory
    judge,
while presiding in an Ontario courtroom remotely by way of video
    conference,
could not hear this motion with the other
    supervisory judges.

[225]

The combination of rule 1.08 and the courts discretion to hold
    concurrent hearings with other courts leads me to conclude that class counsel
    are able to serve their motion returnable in an Ontario courtroom and request
    the court to direct that the motion be conducted by video conference from a
    different location and held concurrently with other courts. I agree with the
    British Columbia Court of Appeals conclusion in
Endean
at para. 83:

A judge of the British Columbia Supreme Court has the
    discretion to sit outside the province with his or her counterparts to hear
    concurrent applications under the Settlement Agreement. The hearing of the
    application in the British Columbia proceeding must be conducted in a British
    Columbia courtroom, although the judge may actually be present from a location
    outside of the province.

[226]

As it is possible to satisfy the dictates of s. 135 of the
Courts
    of Justice Act
by employing rule 1.08, the resort to
    inherent jurisdiction is unnecessary.

[227]

I would allow the appeal from the decision of the motion judge who
    erred by concluding an Ontario Superior Court of Justice supervising the
    1986-1990 Hepatitis C Settlement Agreement has 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 court room in Ontario. I would
    conclude that the Ontario supervising judge while physically located outside
    the province has the jurisdiction and discretion to conduct the motion remotely
    and concurrently with his or her judicial supervisory counterparts.

[228]

I would decline to entertain the additional question raised in
    Ontarios amended notice of appeal: whether the courts of other provinces may
    convene hearings in Ontario? That question was not addressed by the motion
    judge. The intervening attorneys generals of other jurisdictions take the
    position that the question should not be answered in the abstract but should be
    decided on a full factual record. I agree.

[229]

In my view, considering the results, this is not a case for costs.

R.G. Juriansz J.A.


Lauwers J.A.:

[230]

I have had the benefit of reading the reasons of both of my
    colleagues. I agree with LaForme J.A. with respect to all the issues except the
    application of the open court principle. With respect to that issue, I largely
    agree with the reasons of Juriansz J.A.

[231]

To be specific, I agree with LaForme J.A. for the reasons he gives
    that this court has jurisdiction to hear the appeal. Although Juriansz J.A
    correctly sets out the original basis of the motion before the motion judge as
    related to the claims extension motions then pending, I do not see that as the
    context for determining whether the motion judges order is final or
    interlocutory. The situation has evolved, as shown by our common conclusion
    that the appeal should be heard despite its mootness.

[232]

I largely agree with LaForme J.A.s conclusion that there are no
    constitutional, common law or statutory impediments to the motion judges
    order. In my view, the motion judges decision to the effect that he had
    authority, in the exercise of the courts inherent jurisdiction, to sit with
    the other supervising judges outside of the province of Ontario was correct.
    The motion judge fell into error, however, in failing to give effect to the
    open court principle as reflected in s. 135 of the
Courts of Justice
    Act.

[233]

Justice LaForme and I therefore part company on the proper
    application of the open court principle. I agree with parts of his decision
    regarding this principle, particularly paras. 140-142 and 149. I disagree,
    however, with paras. 145-148, 161-181 and 183-185.

[234]

On the open court issue, I largely agree with the reasoning of
    Juriansz J.A. In my view, s. 135 of the
Courts of 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. Therefore, in my view, s. 135 is an express statutory
    limitation on the courts inherent jurisdiction to hold a hearing outside
    Ontario.

[235]

While I agree with Juriansz J.A. that the motion judge erred in
    concluding that a video link to a courtroom in Ontario is not required, I do
    not agree that the application of s. 135 of the
Courts of Justice
    Act
and r. 108 of the
Rules of Civil Procedure
is sufficient to dispose of this appeal, making resort to
    inherent jurisdiction unnecessary. Justice Juriansz effectively says that the
    presence of the video link, pursuant to r. 108, is enough to deem a hearing to
    be taking place in Ontario, regardless of the hearings physical location. This
    would also appear to be the British Columbia Court of Appeals position in
Endean
. In my view, however, a direct approach that recognizes the fact
    that the court is not actually sitting in Ontario is preferable to the adoption
    of a legal fiction.
I therefore find it necessary to
    resort to inherent jurisdiction in order to dispose of this appeal.

[236]

I would therefore allow the appeal of the motion judges order on
    the narrow basis that he erred in concluding that a video link to a courtroom
    in Ontario is not required when a hearing is conducted from outside the
    Province, and would require its amendment accordingly.

Released: March 13, 2015

(RGJ)                                                                             P.
    Lauwers J.A.


Appendix A

Rule 1.08

TELEPHONE AND VIDEO CONFERENCES

Where Available

1.08  (1)  If
    facilities for a telephone or video conference are available at the court or
    are provided by a party, all or part of any of the following proceedings or
    steps in a proceeding may be heard or conducted by telephone or video conference
    as permitted by subrules (2) to (5):

1. A motion (Rule 37).

2. An application (Rule 38).

3. A status hearing (Rule 48.14).

4. At trial, the oral evidence of a witness and
    the argument.

5. A reference (Rule 55.02).

6. An appeal or a motion for leave to appeal
    (Rules 61 and 62).

7. A proceeding for judicial review.

8. A pre-trial conference or case conference.
    O. Reg. 288/99, s. 2; O. Reg. 24/00, s. 1; O. Reg.
    438/08, s. 3 (1).

Consent

(2)  If
    the parties consent to a telephone or video conference and if the presiding
    judge or officer permits it, one of the parties shall make the necessary
    arrangements. O. Reg. 288/99, s. 2.

Order, No Consent

(3)  If
    the parties do not consent, the court may, on motion or on its own initiative,
    make an order directing a telephone or video conference on such terms as are
    just.

(4)  The
    judge or officer presiding at a proceeding or step in a proceeding may set
    aside or vary an order made under subrule (3).

Factors to Consider

(5)  In
    deciding whether to permit or to direct a telephone or video conference, the
    court shall consider,

(a) the general principle that evidence and argument
    should be presented orally in open court;

(b) the importance of the evidence to the
    determination of the issues in the case;

(c) the effect of the telephone or video conference
    on the courts ability to make findings, including determinations about the
    credibility of witnesses;

(d) the importance in the circumstances of the case
    of observing the demeanour of a witness;

(e) whether a party, witness or lawyer for a party
    is unable to attend because of infirmity, illness or any other reason;

(f) the balance of convenience between the party
    wishing the telephone or video conference and the party or parties opposing;
    and

(g) any other relevant matter.

Arrangements for Conference

(6)  Where
    the court permits or directs a telephone or video conference, the court may
    direct a party to make the necessary arrangements and to give notice of those
    arrangements to the other parties and to the court.





[1]
I note that British Columbia class counsel styled the request for directions as
    a Notice of Application in the companion case of
Endean
.


