



COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Ontario, 2022 ONCA 162

DATE: 20220222

DOCKET: M53210 (C69417)

Paciocco
    J.A. (Motion Judge)

Proceeding
    under

The
    Class Proceedings Act, 1992, S.O. 1992, Chapter 6

BETWEEN

Glen Johnson, Michael Smith, Timothy Hayne

Plaintiffs (Respondents)

and

Her Majesty the Queen in the Right of Ontario

Defendant (Respondent)

Mirilyn Sharp and Nancy Sarmento
    Barkhordari, for the appellant

Rita Bambers and Lisa Brost, for the
    respondent Her Majesty the Queen in right of Ontario

Chelsea Smith, for the respondents Glen
    Johnson, Michael Smith and Timothy Hayne

Andrew Eckart, for the proposed
    intervener The Class Action Clinic, University of Windsor, Faculty of Law

Heard: February 18, 2022 by video conference

Paciocco J.A.:

[1]

This motion for intervention as a friend of the
    court by The Class Action Clinic, University of Windsor, Faculty of Law (the
    Clinic) relates to an appeal by Donald Parker of an unsuccessful motion for
    extension of time to opt out of a class action. That class action has been
    certified on behalf of persons incarcerated at the Elgin Middlesex Detention
    Centre between January 1, 2010 and May 18, 2017, against Her Majesty the Queen
    in the Right of Ontario (Ontario), and alleges a failure to provide medical
    care for inmates.

[2]

After the opt-out date for the class action had
    passed, Mr. Parker filed a lawsuit against Ontario for delay in providing him
    with medical care while an inmate at the Elgin Middlesex Detention Centre,
    including during the period encompassed by the class action. In a letter
    accompanying its notice to defend, Ontario referred to the class action and suggested
    that Mr. Parker should discontinue his claim or limit it to the period outside
    of the class action. Mr. Parker has deposed that he was unaware of the class
    action when he instituted the action and upon learning about it, he brought a
    motion to extend the time to opt out of the class action. On April 16, 2021,
    the motion judge refused the motion and on May 10, 2021, ordered costs against
    Mr. Parker.

[3]

Mr. Parkers appeal of that decision is scheduled
    to be heard by this court on March 30, 2022 at 12:00 p.m. In this motion the
    Clinic seeks to intervene as a friend of the court in that appeal, on terms
    that permit the Clinic to file a factum not exceeding 20 pages in length, and to
    make oral argument at the hearing of the appeal of no more than 15 minutes. None
    of the parties oppose this motion but disagree relating to the timing of the
    delivery of responding facta, and the time for oral argument. Mr. Parkers
    consent is contingent on an intervention order not delaying the scheduled
    appeal. Ontarios consent is contingent on the Clinics intervention being
    without prejudice to Ontarios argument that if the adequacy of notice is recognized
    to be a factor to be considered in applications for extension of time to opt-out,
    that factor should not be applied during Mr. Parkers appeal because the
    adequacy of notice was not an issue before the motion judge, and is not an
    issue properly raised on appeal. Mr. Parker disputes Ontarios position, but
    does not take issue with a neutral recital being made in the intervention order
    alerting the panel to the fact that this is an open issue. Ontario also seeks a
    condition prohibiting the Clinic from presenting additional evidence, although
    the Clinic has disclaimed any intention to do so.

[4]

I would grant the Clinics motion to intervene,
    on terms provided below. I am persuaded in the circumstances that the Clinic
    will be able to make a useful contribution to the resolution of the appeal
    without causing injustice to the immediate parties:
Peel (Regional
    Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.
, (1990),
    74 O.R. (2d) 164 (C.A.), at p. 167;
Foster v. West
, 2021 ONCA 263,
    55 R.F.L. (8th) 270, at para. 10. I make the following findings in that regard.

[5]

First, the nature of the case and the issues
    that arise support this outcome. The legal considerations relevant in
    determining whether a class member can secure an extension of time to opt out
    of a class action are not settled and arise in this appeal. The Clinic proposes
    to offer a framework, derived from a principled analysis of the role of courts
    as guardians of related rules, that will focus on the factors that a judge
    should consider when adjudicating a class members motion for an extended
    opt-out. The Clinic will argue that those factors will enable a balanced
    assessment of the rights of class members against the objective of class
    actions. These issues transcend the interests of the parties in this public
    dispute and the proposed submissions do not simply repeat submissions that will
    be made by the parties.

[6]

Second, the Clinic has the experience and
    expertise to provide useful submissions. It is a non-profit legal service that,
    under the direction of a legal scholar with recognized expertise in class
    actions and with the contribution of University of Windsor law students, provides
    public legal education, assistance in serving the rights and needs of class
    members, and policy analysis and empirical research on various class action
    issues.

[7]

Third, granting the intervention will not cause
    injustice to the parties. The parties received advance notice of the Clinics
    intention to seek intervention and have been provided with a draft factum
    reflecting the essence of the submissions the Clinic proposes to make. As
    indicated, none of the parties oppose the intervention. Nor will granting this
    motion delay the impending appeal. The Clinic has undertaken that if granted
    leave, they will abide by any timelines imposed or ordered by the court. The
    intervention will not prejudice Ontarios right to make the argument it chooses
    relating to adequacy of notice, and the Clinic will not be at liberty to apply
    for the admission of additional evidence.

[8]

In order to facilitate its intervention, the
    Clinic seeks leave to file a 20-page factum, to be served electronically, and
    15 minutes for oral submissions at the hearing. The Clinic provided a draft
    factum, reserving the right to make further editorial, non-substantive changes.
    The draft factum is 15 pages, apart from the cover sheets, style of cause, and
    schedules. It is a concise and clear document that does not appear to require
    supplementation. The factum will be limited to 15 pages. Given the quality
    of the factum, I am also satisfied that oral submissions can be made
    expeditiously and efficiently on behalf of the Clinic at the hearing, in 10
    minutes.

[9]

The parties to the appeal do not agree on the
    terms that should accompany the intervention order. Ontario and Mr. Parker have
    requested leave to file factums in response to the Clinics factum. All parties
    should each be entitled to file a 10-page responding factum. Mr. Parker wishes
    to file his factum one week after the delivery of Ontarios responding factum.
    Ontario wants Mr. Parker to file his responding factum the same date that
    Ontario does. I agree with Ontario. I see no basis for granting Mr. Parker what
    would, in effect, be a reply factum.

[10]

Mr. Parker seeks an additional 10 minutes of
    oral argument to respond to arguments made by the intervenor. Ontario seeks the
    same 10 minutes, as well as an additional 15 minutes of oral argument, on top
    of the 45 minutes it has already been allocated. In support of its request for
    an additional 15 minutes Ontario argues that its time allocation was set before
    its time estimate was provided, and it requires additional time to address affidavit
    evidence that Mr. Parker intends to present to the appeal panel. I am not
    persuaded that this additional 15 minutes is required to enable Ontario to make
    its oral submissions and, given the scheduling of this appeal, it will
    inconvenience the court.

[11]

I therefore grant the Clinics motion to
    intervene on the following terms:

1.

The Clinics intervention is without prejudice to
    Ontarios right to argue that the adequacy of the notice of the class action is
    not appropriate for consideration in determining Mr. Parkers appeal.

2.

The Clinic shall not bring a motion for the admission
    of additional evidence or otherwise seek to augment the record.

3.

The Clinic shall file a factum not exceeding 15
    pages in length.

4.

The Clinics factum shall consist of an edited
    version of the draft factum filed in the context of this motion and will not
    expand on the issues to be addressed by the clinic or alter materially the
    arguments presented in the draft.

5.

The Clinics factum is to be served and filed no
    later than February 25, 2022 and may be served electronically.

6.

Mr Parker, and Ontario may file a factum not
    exceeding 10 pages in length in response to the Clinics factum. Each factum is
    to be served and filed no later than March 16, 2022.

7.

The Clinic is permitted to make oral arguments at the hearing of
    this appeal of no more than 10 minutes.

8.

Mr. Parker and Ontario are each granted 10 additional
    minutes for oral argument.

9.

The Clinic will consent to service of all materially electronically.

10.

The Clinic shall not seek costs in the intervention, nor will costs
    be awarded against it.

Released: February 22, 2022 D.M.P.

David M. Paciocco J.A.


