



COURT OF APPEAL FOR ONTARIO

CITATION:
Fanshawe College of Applied Arts and Technology v.
    Hitachi, Ltd., 2022 ONCA 144

DATE: 20220216

DOCKET:
    M52987 (C70009)

Lauwers, Huscroft and Coroza
    JJ.A.

BETWEEN

The Fanshawe College of Applied Arts and Technology

Plaintiff

(Respondent/Moving
    Party)

and

Hitachi,
    Ltd., Hitachi Asia, Ltd., Hitachi America, Ltd., Hitachi Displays

Ltd,
    Hitachi Electronic Devices (USA), Shenzhen SEG Hitachi Color Display

Devices,
    Ltd., Hitachi Canada, Ltd., Irico Group Corporation, Irico Group

Electronics
    Co, Ltd., Irico Display Devices Co., Ltd., LG Electronics, Inc.,

LG Electronics
    Taiwan Taipei Co. Ltd., LG Electronics USA, Inc., LG Electronics

Canada,
    Panasonic Corporation F/K/A Matsushita Electric Industrial Co. Ltd.,

Panasonic
    Corporation of North America, Panasonic Canada Inc.,

Koninklijke
    Philips Electronics N.V., Philips Electronics Industries (Taiwan)

Ltd.,
    Philips Da Amazonia Industria Electronica LTDA, Philips Electronics

North
    America Corporation, Philips Electronics Ltd., Samsung Electronics

Co.
    Ltd., Samsung Electronics America Inc., Samsung Electronics Canada Inc.,

Samsung
    SDI Co., Ltd. (F/K/A Samsung Display Device Co.), Samsung SDI Brasil LTDA,
    Samsung SDI America, Inc., Samsung SDI Mexico S.A. De C.V., Shenzhen Samsung
    SDI Co. Ltd., Tianjin Samsung SDI Co., Ltd., Toshiba Corporation, Toshiba
    America Electronic Components Inc., Toshiba America Information Systems Inc.,
    Toshiba of Canada Limited, Beijing Matsushita Color CRT Company, Ltd., Samtel
    Color, Ltd and MT Picture Display Co., Ltd

Defendants

Bridget Moran, Linda Visser and
    Katherine Shapiro, for the moving party

Brett Harrison, Paola Ramirez and
    Anthony Labib, for the responding party Class Action Capital Recovery LLC

Heard: January 25, 2022
by video conference

Lauwers J.A.:

I.

OVERVIEW

[1]

This is a motion to quash in the context of a class
    action for price-fixing related to the sale of cathode ray tube (CRT) products
    by various electronics manufacturers. The action is currently in the settlement
    administration phase. A court-approved Distribution Protocol is in place, which
    sets out a claims process for distributing settlement funds to class members.
    The Protocol provides claimants with a right of appeal against the decisions of
    the Claims Administrator to the Superior Court or its designate. However, the
    Protocol purports to prevent any further appeals.

[2]

Class Action Capital Recovery LLC (CAC) acted
    as a third-party filer for some claimants, but it is not itself a party to the
    class action. CAC seeks to appeal a decision of the motion judge relating to the
    claim reconsideration process.

[3]

Class Counsel move to quash the appeal on
    several bases, focusing on the grounds that the limit on further appeals in the
    Protocol binds this court to quash the appeal under s. 134(3) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, and that CAC does not have standing
    to bring an appeal.

[4]

I would dismiss the motion to quash. This court
    has jurisdiction to hear the appeal from the motion judges order. CAC has
    standing to appeal, and its appeal is not time-barred.

II.

The Background

[5]

After a succession of litigation battles, the
    claims were settled and the settlements were approved by the Superior Court of
    Justice under s. 27.1 of the
Class Proceedings Act,

1992
,
    S.O. 1992, c. 6. RicePoint Administration Inc. was appointed as the Claims Administrator.

[6]

On April 20, 2018, the motion judge approved the
    Distribution Protocol and Notice of Claims Process for the settlement funds. As
    he described in his endorsement of January 6, 2021, the Protocol requires
    claimants to submit Claims Forms detailing their CRT product purchases. They
    were permitted to use a third-party filer for this purpose. A claimant was not
    required to provide supporting documentation for a claim unless selected by the
    Claims Administrator for audit.

[7]

The Claims Administrator was required, under
    para. 43 of the Protocol, to identify deficiencies in a claim and give the
    claimant a chance to address them. The Claims Administrator could then deny all
    or part of the claim. The Protocol gave claimants, under paras. 48-55, a
    limited right of appeal to the Superior Court or its designate for claims over
    $100,000. Paragraph 55 of the Protocol provides that the decision on appeal is
    final and binding and shall not be subject to any further appeal or review
    whatsoever.

[8]

CAC filed claims on behalf of many large,
    institutional claimants. The Claims Administrator decided to select all claims
    filed by third parties for audit. Because of the time that had elapsed since
    the claimants purchases of the CRT products, the operation of the
    institutional claimants document retention policies meant that many were
    unable to produce documentary proof of purchase. The Claims Administrator
    denied the claims, using the same generic notice for each claimant whose claim
    was rejected in its entirety: We are rejecting your claim because you failed
    to provide adequate proof of purchase.

[9]

CAC and the other third-party filers whose
    claims were denied on that basis appealed under the Protocol by way of a motion
    for directions to the Superior Court. Acting in his capacity to hear appeals
    under the Protocol, the motion judge allowed the appeals in part on January 6,
    2021. He held that the Claims Administrator had interpreted documentary proof
    too narrowly and had not given sufficient reasons for denying the claims. He
    remitted to the Claims Administrator every claim in which a declaration
    attesting to the purchase of CRT products and supporting documentation were
    submitted, provided that these documents were submitted on time or that the
    filers should have been given additional time to submit such documentation. The
    other appeals were dismissed.

[10]

CAC and the Claims Administrator then argued about
    the process to be followed for assessing the remitted claims. The Claims
    Administrator took the position that it was only required to reconsider the
    claims on the basis of the documentation in accordance with the motion judges
    directions, and then send out revised decision notices. However, CAC maintained
    that the January 6th order required the Claims Administrator to restart the
    deficiency process as set out at para. 43 of the Protocol, that is, by
    identifying deficiencies in the submitted materials and then giving the
    claimants a chance to correct the deficiencies.

[11]

Both the Claims Administrator and CAC wrote to the
    motion judge seeking guidance. The trial coordinator responded by email on May
    11, 2021 stating:

Justice Grace believes his January 6, 2021
    reasons are clear. Paragraph 75 provides that the allowed appeals are remitted for
    reconsideration and decision in accordance with paras. 45 through 47 of the
    Distribution Protocol Para. 75 does not refer to para. 43. That should
    resolve the dispute concerning deficiency notices.

[12]

On June 25, 2021, the Claims Administrator sent
    reconsideration notices for 115 of the claims submitted by CAC that had
    previously been denied in full. Of these, 55 claims were partially approved and
    60 were rejected. CAC brought another motion for directions on the basis that the
    Claims Administrator had failed to follow the deficiency process ordered by the
    motion judge.

[13]

On September 21, 2021, the motion judge provided
    a brief endorsement declining to revisit the issue. He found that there was no
    evidence that the Claims Administrator had not acted in accordance with his January
    6th instructions, which spoke for themselves.

[14]

CAC filed its notice of appeal to this court on
    October 21, 2021. Class Counsel now seeks to quash CACs appeal.

III.

the Issues:

[15]

The issues raised on this motion to quash are:

1.

Does this court have jurisdiction to hear the
    appeal?

2.

Does CAC have standing?

3.

Is the appeal out of time?

4.

Is the appeal a collateral attack on the January
    6, 2021 order?

I address each issue in turn.

IV.

Analysis

(1)

Does this court have jurisdiction to hear the
    appeal?

[16]

When he took up his responsibility under the
    Protocol, the motion judge did not cease acting in his capacity as a Superior
    Court judge. This is the plain ratio of this courts decision in
Fontaine
    v. Duboff Edwards Haight & Schachter
, 2012 ONCA 471, 111
    O.R. (3d) 461, which involved an appeal from a decision of Winkler
    C.J.O. sitting in his capacity as an administrative judge under the

Court
    Administration Protocol for the Indian Residential Schools Settlement
    Agreement.

This court dismissed the respondents motion to quash the appeal because
    the Settlement Agreement was incorporated into a series of court orders, and
    the orders implementing the Settlement Agreement stated that the courts would
    supervise its implementation. The administrative judges directions finally
    determined the issue in question (i.e., whether legal fee review decisions of
    the Chief Adjudicator were subject to any further appeal or review). His
    directions were incorporated as a final order of a judge of the Superior Court
    of Justice. Therefore, his decision was appealable to the Court of Appeal under
    s. 6(1)(b) of the
Courts of Justice Act
.

[17]

The legislature knows how to oust or modify this courts
    jurisdiction in cognate areas. I point to two examples. The first is the
Arbitration Act
,
1991
, S.O.
    1991, c. 17, which permits rights of appeal to the courts to be limited by an
    arbitration agreement under s. 45. The second is
the
International
    Commercial Arbitration Act
,
2017
, S.O. 2017, c. 2, Sch. 5, s. 11
    (ICAA) and arts. 16 and 34 of the
UNCITRAL Model Law on
    International Commercial Arbitration
, adopted by the United Nations
    Commission on International Trade Law on June 21, 1985, as amended on July 7,
    2006, which has the force of law in Ontario under s. 5 of the ICAA, subject to
    any modifications set out in the Act.
This courts usual jurisdiction to
    hear appeals from orders of Superior Court judges can only be displaced by
    virtue of an agreement if doing so is permitted by statute.

[18]

There is no language in the
Class
    Proceedings Act
or in any other Ontario statute ousting this courts
    jurisdiction. Paragraph 55 of the Protocol is not sufficient, on its own, to
    oust the appellate jurisdiction this court would otherwise have under the
Courts
    of Justice Act
. This fact might counsel caution in the future design of
    class action distribution protocols.

[19]

The consequence is that the appeal rights under s.
    6(1) of the
Courts of Justice Act
presumptively apply. Section 6(1)
    provides:

An appeal lies to the Court of
    Appeal from,



(b) a final order of a judge of the
    Superior Court of Justice, except,

(i) an order referred to in
    clause 19(1)(a) or (a.1), or

(ii) an order from which an
    appeal lies to the Divisional Court under another Act;

[20]

Does s. 6(1) direct the appeal under the Protocol
    to this court or, under s. 6(1)(b)(ii), to the Divisional Court by reason
    of s. 30 of the
Class Proceedings Act
? The Protocol is a settlement
    and is not a decision on the merits to which s. 24 (aggregate damages) or s.
    25 (individual issues) would apply to lead to an appeal governed by s. 30. Section
    30 is silent on the appellate route from an order made on a motion for
    directions brought under the terms of a court-approved settlement agreement:
Parsons
    v. Ontario
, 2015 ONCA 158, 125 O.R. (3d) 168, at para. 39, revd on other
    grounds, 2016 SCC 42, [2016] 2 S.C.R. 162. This court has held that [w]here s.
    30 does not specifically address the appeal route for a particular type of
    order or judgment, s. 6(1)(b) of the
Courts of Justice Act
will govern
    whether an appeal lies to this court or to Divisional Court:
Bancroft-Snell
    v. Visa Canada Corporation
, 2019 ONCA 822, 148 O.R. (3d) 139, at para. 16,
    leave to appeal refused, [2019] S.C.C.A. No. 500 (
Wal-Mart Canada Corp.
)
    and [2019] S.C.C.A. No. 501 (
Home Depot of Canada Inc.
).
Because s. 30 does not specifically address the appeal route for
    this type of order, appeals to this court are governed by s. 6(1) of the
Courts
    of Justice Act
. Under s. 6(1)(b), CACs appeal lies to this court.

(2)

Does CAC have standing?

[21]

Class Counsel argue that because CAC is not a
    party, this courts decisions in
Dabbs v. Sun Life Assurance Co. of Canada
(1998), 41 O.R. (3d) 97 (C.A.), leave to appeal refused, [1998] S.C.C.A. No.
    372 and
Bancroft-Snell
deprive it of standing. In
Bancroft-Snell
,
    this court affirmed
Dabbs
and held that class members appeal rights
    under the
Class Proceedings Act
are not supplemented by the general
    appeal rights under s. 6(1)(b) of the
Courts of Justice Act
.

[22]

In response, CAC submits that
Bancroft-Snell
is distinguishable. It argues that, unlike the situation in
Bancroft-Snell
,
    it is not seeking to appeal an order approving a settlement agreement, but is
    instead seeking to uphold the deficiency process in the Protocol. CAC notes
    that class members did not object to the Protocol because it contained the
    deficiency process. In addition, CAC emphasizes that class members have a
    direct interest in the subject matter of the proceeding, and that the technical
    distinction in the
Class Proceedings Act
between class members and
    parties should not be used to part way with the rights of class members.

[23]

It is too late for Class Counsel to credibly
    dispute CACs standing to advance the interests of its claimant clients, because
    CAC represented them without objection before the motion judge. CAC must be
    understood as having the status of an agent for its clients in this phase of
    the class proceeding. A more formalistic approach would only undermine the
    goals of class proceedings by, for example, requiring each claimant
    inefficiently and expensively to advance its own appeal.

(3)

Is the appeal out of time?

[24]

Rule 61.04 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 requires an appellant to serve a notice of appeal within
    30 days of the order appealed from and then to file it within an additional 10
    days. However,
under r. 3.02,
t
he court can extend the time for serving and filing a notice of
    appeal.
On a motion for an extension of time, the
    overarching question is whether the justice of the case requires that an
    extension be given. Relevant considerations include: (a) whether the moving
    party formed a
bona fide
intention to appeal within the relevant time
    period; (b) the length of, and explanation for, the delay; (c) any prejudice to
    the responding parties; and (d) the merits of the proposed appeal:
Enbridge
    Gas Distribution Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at
    para. 15.

[25]

When does the appeal period start to run? In
Fontaine
    v. Canada (Attorney General)
, 2012 ONCA 206, 289 O.A.C. 190, Watt J.A.
    stated, at para. 57: As a general rule, the time period within which a notice
    of appeal is to be delivered begins to run on the date the order under appeal
    is pronounced by oral or written reasons. He added a caveat that where clarification
    is required because the judgment is uncertain on an issue, the time runs from
    entry, not pronouncement: at para. 59, citing
Byers (Litigation Guardian
    of) v. Pentex Print Master Industries Inc.
(2003), 62 O.R. (3d) 647 (C.A.).

[26]

An appeal lies from a judgment or order, not
    from the reasons for it:
Ross v. Canada Trust Company
, 2021
    ONCA 161, 458 D.L.R. (4th) 39, at para. 53. But where the precise import
    of the reasons is not clear until the judgment is settled, it is reasonable to
    treat that date as the date from which the appeal period begins to run.
    Further, in determining whether to quash an appeal on the basis that it is out
    of time, a panel can consider the factors that inform a decision to extend time:
    see
Gefen v. Gaertner
, 2021 ONCA 631, at para. 11.

[27]

In considering the application of these
    principles, I observe that no formal order was ever entered from the January 6,
    2021 decision. Perhaps that is because the parties could not agree on the
    terms. The letters that the parties sent to the motion judge seeking to clarify
    the meaning of the January 6th decision demonstrate their persistent
    disagreement that was only resolved on September 21, 2021, when the
    motion judges subsequent endorsement was released.

[28]

As noted above, after the Claims Administrator
    adjusted the claims, CAC appealed again on the basis that the Claims
    Administrator had failed to follow the deficiency process ordered by the motion
    judge. That motion was heard on September 21, 2021. The motion judge determined
    that his previous instructions in the January 6th reasons had been clear and
    that the Claims Administrator had complied with them.

[29]

At one level, the determination of when time began
    to run for appeal purposes depends on whether it was clear from para. 75 of the
    January 6th reasons that the full deficiency process was not to be followed for
    the remitted claims. That paragraph states: The allowed appeals are remitted
    to RicePoint for reconsideration and decision in accordance with paras. 45
    through 47 of the Distribution Protocol and these reasons. As noted above, the
    clarifying email sent by the trial coordinator on behalf of the motion judge stated:
    Para. 75 does not refer to para. 43. That should resolve the dispute
    concerning deficiency notices.

[30]

Paragraph 43 of the Protocol, to which the motion
    judge did not refer in his January 6th reasons, provides:

If the Claims Administrator finds that
    deficiencies exist in a Claim Form or other required information, the Claims
    Administrator shall notify the Settlement Class Member, by email or regular mail,
    of the deficiencies. The Claims Administrator shall allow the Settlement Class
    Member thirty (30) days from the date of such notice to correct the
    deficiencies. If the deficiencies are not corrected within the thirty (30) day
    period, the Claims Administrator may reject the Claim Form. The Online Claim
    Portal shall be designed so as to minimize the possibility of deficient Claim
    Forms.

[31]

The appeal will be argued so I am reluctant to
    weigh in, but I am not surprised that CAC viewed the appeal judges trenchant
    criticism of the Class Administrators process in the January 6th reasons at
    paras. 55-57 and 68-75 as implying that the Claims Administrator would conduct
    a broader reconsideration of the claims than the appeal judge stipulated in the
    final endorsement.

[32]

Given the continued dispute about the meaning of
    the January 6th decision, I view the date on which the judgment exhibited
    sufficient certainty for appeal purposes as September 21, 2021, when the motion
    judges subsequent endorsement was released. As a result, the appeal was
    commenced in time.

[33]

Even if I am mistaken, the court has the
    discretion to extend time based on the
Enbridge
factors. CAC was
    obviously forceful in arguing its position throughout. The delay is fully explained.
    There is no prejudice beyond a delay in disbursing the settlement funds. The
    appeal is not frivolous and the justice of the case warrants it being argued.

(4)

Is the appeal a collateral attack on the January
    6, 2021 order?

[34]

I agree with CAC that a collateral attack argument
    is a defence,
not a reason to quash an appeal for want
    of jurisdiction
:
Gratton-Masuy Environmental Technologies Inc. v.
    Ontario
, 2010 ONCA 501, 101 O.R. (3d) 321, at para. 74, leave to appeal requested
    but appeal discontinued, [2010] S.C.C.A. No. 397. This issue must be left to
    the panel hearing the appeal.

V.

Disposition

[35]

I would dismiss the motion to quash with costs
    payable to CAC. If the parties are unable to agree on costs, then CAC may file
    a written submission no more than three pages in length within ten days of the
    date of the release of these reasons; Class Counsel may file a written
    submission no more than three pages in length within ten days of the date CACs
    submission is due.

[36]

Class Counsel advised that this appeal is
    preventing the disbursement of settlement funds because any remaining funds
    will be distributed
pro rata
, so all entitlements must be finalized
    before the distribution can occur. Accepting this submission, I would direct that
    the appeal be heard on an expedited basis.

Released: February 16, 2022 P.L.

P.
    Lauwers J.A.

I
    agree. Grant Huscroft J.A.

I
    agree. S. Coroza J.A.


