



COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Ontario, 2021 ONCA 650

DATE: 20210922

DOCKET: M52599 (C69417)

Lauwers, Coroza and Sossin JJ.A.

BETWEEN

Glenn Johnson, Michael Smith and Timothy Hayne

Plaintiffs

(Respondents/Responding
    Parties)

and

Her Majesty the Queen in Right of Ontario

Defendant

(Respondent/Moving
    Party)

Rita V. Bambers and Lisa Brost, for the moving party

Mirilyn R. Sharp, Nancy Sarmento Barkhordari and Nital S.
    Gosai, for the responding party Donald Parker

Kevin Egan and Michael Peerless, for the responding
    parties Glenn Johnson, Michael Smith and Timothy Hayne

Heard: September 2, 2021 by video conference

Lauwers J.A.:

A.

overview

[1]

In an order dated April 16, 2021, the motion judge refused to extend the
    period of time within which Donald Parker could opt out of this class
    proceeding under s. 9 of the
Class Proceedings Act
,
1992
,
    S.O. 1992, c. 6, which provides that [a]ny member of a class  may opt out of
    the proceeding in the manner and within the time specified in the certification
    order. In an order dated May 10, 2021, the motion judge also ordered Mr.
    Parker to pay costs in the amount of $20,850 and did not permit him to set off the
    costs against future payments to be made in the class proceeding. Mr. Parker
    appealed to this court.

[2]

Her Majesty the Queen in Right of Ontario moves to quash Mr. Parkers
    appeal on the basis that the motion judges order was interlocutory and
    therefore appealable only to the Divisional Court under s. 19(1) of the
Courts
    of Justice Act
,
R.S.O. 1990, c. C.43.
Is
    a motion judges decision to refuse to extend the time within which a class
    member can opt out of a class proceeding final or interlocutory? This is a
    novel question.

[3]

I would dismiss Ontarios motion to quash the appeal on the basis that
    the order was final, for the reasons that follow.

B.

factual context

[4]

Mr. Parker was an inmate in the Elgin Middlesex Detention Centre in
    December 2016. He alleges that when he regained consciousness after a drug
    incident, he noted pain and swelling in his left arm. He alerted detention
    centre staff, but they did nothing. His pain and swelling worsened. Three days
    after the onset of his symptoms, he was taken to the hospital where it was
    discovered that the muscle in his left arm had become necrotic. He endured three
    emergency surgeries and now has a permanent disabling injury.

[5]

Mr. Parker claims that he discovered his cause of action in November
    2018 when he received a copy of his medical chart from the treating hospital.
    The chart confirmed the causal relationship between his delayed presentation at
    the hospital and his injury. Mr. Parker sued Ontario and a number of other
    entities and individuals claiming general, special, punitive, and aggravated
    and exemplary damages for negligence and under s. 24(1) of the
Canadian
    Charter of Rights and Freedoms
for breaches of ss. 7 and 12. His total
    claim comes to more than $6 million.

[6]

When he started his lawsuit, Mr. Parker was not aware of the existence
    of two class actions that had been certified and consolidated on behalf of
    persons incarcerated at the Elgin Middlesex Detention Centre between January 1,
    2010 and May 18, 2017.

[7]

The motion judges certification order of May 18, 2017 specified that the
    opt-out deadline was June 20, 2018.

[8]

On the evidence before the motion judge, which Ontario does not dispute,
    the class proceeding did not come to Mr. Parkers attention. In August 2017,
    Mr. Parker was transferred from the Elgin Middlesex Detention Centre to
    Maplehurst and then to Joyceville Institution, a federal prison near Kingston,
    Ontario, where he was held until December 2019. The notice process under the
    class action plan proceeded. A long-form notice was sent to Mr. Parker, but not
    at Joyceville. It was sent to the apartment he had shared with his father in
    St. Thomas, Ontario immediately before his arrest. His father lived at the
    address at all material times.

[9]

Mr. Parker deposed that he learned of the class proceeding only when he
    received a letter from counsel for Ontario dated June 5, 2020, which accompanied
    Ontarios notice of intent to defend Mr. Parkers action. Ontario asked Mr.
    Parkers counsel to discontinue the action or to limit the claim to post May
    18, 2017 conduct in view of this class action.

[10]

Mr.
    Parker responded by seeking an extension of the time within which he could opt out
    of the class action. By refusing to extend the time, the motion judge effectively
    terminated Mr. Parkers civil action.

C.

the governing principles

[11]

As
    noted, interlocutory orders are appealable only to the Divisional Court and
    final orders are appealable to this court. Zarnett J.A. gave a compressed
    statement of the distinction between interlocutory and final orders in
Drywall
    Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc.
,
    2020 ONCA 375, at para. 16:

An interlocutory order is one which does not determine the real
    matter in dispute between the partiesthe very subject matter of the litigationor
    any substantive right to relief of a plaintiff or substantive right of a
    defendant. Even though the order determines the question raised by the motion,
    it is interlocutory if these substantive matters remain undecided:
Hendrickson
    v. Kallio
, [1932] O.R. 675 (C.A.), at p. 678;
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).

See also
Buck Brothers Ltd. v. Frontenac Builders
    Ltd.
(1994),
19 O.R. (3d)
    97, [1994] O.J. No. 1592 (C.A.).

[12]

Hoy
    A.C.J.O. discussed the rationale for the distinction between interlocutory and
    final orders in
Skunk v. Ketash
, 2016 ONCA 841, 135 O.R. (3d) 180, at
    para. 31:

The reason for the distinction is explained by Paul M. Perell
    and John W. Morden in
The Law of Civil Procedure in Ontario
, 2d ed.
    (Markham: Lexis-Nexis Canada Inc., 2014), at p. 910:

¶12.41 In general terms, the policy underlying the
    distinction between interlocutory and final orders is the proportionality
    principle. For judicial decisions that are of comparatively less importance to
    the parties and the public than other decisions (particularly those other
    decisions that are determinative of the outcome of the litigation), there
    should be no appeal at all, or the right of appeal should be curbed by a leave
    requirement. [Footnote omitted.]

See also Gerard Kennedy, Civil Appeals in Ontario: How
    the Interlocutory/Final Distinction Became So Complicated and the Case for a
    Simple Solution? (2020) 45:2 Queens L.J. 243, at pp. 255-57.

[13]

There
    is no need to set out the many different circumstances in which this distinction
    has been judicially elaborated because Mr. Parker focuses on two areas: the
    forum in which the dispute will be finally resolved, and the effect of the
    order under appeal on his substantive rights. I address each of these after
    considering the jurisprudence on opt-out rights.

(1)

Opt-Out Rights

[14]

Ontario
    argues that the
Class Proceedings Act
is entirely a procedural statute
    and submits that any right under it, such as the right to opt out, should also
    be seen as nothing more than procedural, certainly not substantive. Ontario
    cites
Nutech Brands Inc. v. Air Canada
,
[2008] O.J. No. 1065 (S.C.)
per
Leitch R.S.J.,
    at para. 18: Opting out affects a procedural right, not a substantive right 
    it requires class members to choose the venue in which to pursue their
    substantive claims.

[15]

However,
    one can speak of the right to opt out as itself a substantive right. In
1250264
    Ontario Inc. v. Pet Valu Canada Inc
., 2012 ONSC 4317, 112 O.R. (3d) 294,
    revd on other grounds 2013 ONCA 279, 115 O.R. (3d) 653, Strathy J. (as he then
    was) noted, at paras. 58 and 59:

The right of a party to opt out is fundamental to the courts
    jurisdiction over unnamed class members. It is also fundamental to preserve the
    legal rights of those who wish to exercise those rights other than through the
    class action.

This court has consistently spoken of the importance of a fair
    and informed optout process. [Citations omitted.]

He cited the decision of Sharpe J.A. in
Currie v.
    McDonalds Restaurants of Canada Ltd.
(2005), 74 O.R. (3d) 321 (C.A.), at
    para. 28, who pointed out the substantive effects of opting out:

The right to opt out is an important procedural protection
    afforded to unnamed class action plaintiffs. Taking appropriate steps to opt
    out and remove themselves from the action allows unnamed class action
    plaintiffs to preserve legal rights that would otherwise be determined or
    compromised in the class proceeding. Although she was not referring to inter-jurisdictional
    issues, in
Western Canadian Shopping Centres Inc. v. Dutton
, [2001] 2
    S.C.R. 534,
at
    para. 49, McLachlin C.J.C. identified the importance of notice as it relates to
    the right to opt out: "A judgment is binding on a class member only if the
    class member is notified of the suit and given an opportunity to exclude
    himself or herself from the proceeding." The right afforded to plaintiff
    class members to opt out has been found to provide some protection to
    out-of-province claimants who would prefer to litigate their claims elsewhere:
Webb
    v. K-Mart Canada Ltd.
(1999), 45 O.R. (3d) 389 at 404 (S.C.J.).

[16]

Our
    society places a high premium on a persons ability to initiate and participate
    in litigation as an incident of personal autonomy. Along with it goes the right
    to appoint counsel of ones choice, the right to participate meaningfully in
    the development of litigation strategy, to participate in settlement
    negotiations, and to settle the action. The legislative right to opt out of a
    class proceeding recognizes these significant rights.

[17]

The
    cases that point to the importance of opt-out rights implicitly accept this perspective.
    See for example, the observation of Belobaba J. in
Workmen Optometry v.
    Aviva Insurance
, 2021 ONSC 3843, in which he considered a motion to stay
    individual actions pending the certification of a related class action. He
    noted, at para. 9, that: If a plaintiff has good reason to reject the class
    proceeding and pursue an individual claim, then as a general proposition they
    should have every right to do so. He added: The CPA was designed to enhance
    access to justice. It would be ironic in the extreme if this important
    procedural vehicle delayed such access for legitimate individual litigants.
    Belobaba J. cited Cullity J.s earlier observation to the same effect in
Dumoulin
    v. Ontario (Ontario Realty Corp.)
, [2004] O.J. No. 2778, at para. 8: The CPA
    was not intended to prevent, or impede, actions by individuals for no other
    reason than they are, or may be, members of a putative class in an action
    commenced by another party.

(2)

The Forum

[18]

In
    general terms, a decision that determines the forum in which the merits of the
    dispute are to be heard is considered to be a final decision:
Buck Brothers
(a decision that a jurisdictional question should go to a panel of arbitrators rather
    than the courts);
M.J. Jones Inc. v. Kingsway General Insurance Co
.
    (2003), 233 D.L.R. (4th) 285 (Ont. C.A.) (a decision to deny a motion for a
    stay based on a lack of jurisdiction or
forum non conveniens
);
Smith
    Estate v. National Money Mart Company
,
    2008 ONCA 746,
92 O.R. (3d) 641, leave to appeal refused, [2008]
    S.C.C.A. No. 535 (a decision to deny a stay of an action in favour of an
    arbitration);
Fontaine v. Canada (Attorney General)
, 2018 ONCA 832 (a
    direction that a tribunal outside the jurisdiction of Ontarios courts determine
    certain issues).

[19]

By
    contrast, in
Locking v. Armtec Infrastructure Inc.
, 2012 ONCA 774, 299 O.A.C.
    20, this court held that an order resolving a carriage dispute between competing
    law firms over which firm and which class action would proceed was interlocutory
    because it did not determine the merits of the action. In
Drywall Acoustic
,
this court held that a motion judges
    refusal to stay an Ontario class action in favour of a Quebec class action was
    interlocutory because, as Zarnett J.A. noted, at para. 27: [T]he Quebec
    Plaintiffs motion to stay did not raise for determination any of the Defendants
    substantive responses to the merits of the Ontario Plaintiffs claim, let alone
    result in the determination of any such substantive response.

(3)

Substantive and Procedural Rights

[20]

The
    starting point for determining whether an order is final or interlocutory is Middleton
    J.A.s primordial statement in
Hendrickson v. Kallio
, [1932] 4 D.L.R.
    580 (Ont. C.A.) at pp. 583-84:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the partiesthe
    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.

[21]

The
    distinction between substantive and procedural rights was addressed by this
    court in
Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd.
(1998), 116 O.A.C. 103, at para. 13:

As stated in [Holmested] and Watson on
Ontario Civil
    Procedure
at 62-24: 

to be final an order must deal with the
    substantive merits as opposed to mere procedural rights, no matter how
    important the procedural rights may be. The test focuses on whether the order
    under appeal finally disposes of the rights of the parties, in the sense of
    substantive rights to relief (in the case of a plaintiff) or a substantive
    defence (in the case of a defendant).

[22]

However,
    in
Buck Brothers
, Morden A.C.J.O. made an important qualifying
    distinction. He found that the motion judges order, which determined the forum
    by staying a court action and requiring the parties to submit to arbitration,
    was a final order even though the real issue in dispute between the parties  the
    substance of the arbitration itself  was not decided. He explained at paras. 7
    and 8:

I read the passage from
Hendrickson v. Kallio
as
    referring to the real matter in dispute between the parties
in the
    proceeding which is before the court
and not in some other proceeding
    which may, or may not, then be in existence. In accordance with this
    interpretation, I read "the litigation" in "the very subject
    matter of the litigation" as referring to the proceeding in which the
    order in question is made. Similarly, I read "the case" in "if
    the merits of the case remain to be determined" as also referring to the
    proceeding in which the order is made.



The foregoing conclusion is not merely a matter of interpreting
    the words in
Hendrickson
. It is, in my view, in accord with the
    purpose of a provision which categorizes orders for appeal purposes. I have
    difficulty concluding that an order on an issue raised in a proceeding which
    ends the proceeding is interlocutory simply because it does not finally
    determine another, quite possibly larger, issue between the parties which may
    be subsequently determined in some other proceeding or by some other process. [Emphasis
    in original.]

D.

the principles applied

[23]

In
    her argument, Mr. Parkers counsel posed an arresting counterfactual situation.
    She pointed out that it was open to Ontario to move for a permanent stay in
    Mr. Parkers civil action itself. Had Ontario done so, there is no doubt
    that the motion judges decision would have been identified as final and
    therefore subject to appeal to this court. Should it matter that Ontario
    instead chose to move in the class proceeding?

[24]

McLachlin
    C.J.C. noted in
Western Canadian Shopping Centres Inc. v. Dutton
,
    2001 SCC 46, [2001] 2 S.C.R. 534, at paras. 27-29, that class actions have
    three important advantages. First, they promote judicial economy by avoiding
    unnecessary duplication in fact-finding and legal analysis. Second, class
    actions improve access to justice by spreading litigation costs over many
    plaintiffs, which enables the prosecution of claims that would otherwise be too
    expensive to pursue individually. Third, class actions present a deterrent to
    potential wrongdoers who would cause widespread, but individually minimal,
    harm.

[25]

The
    purposes and advantages of class proceedings are realized for litigants with
    relatively modest claims who are prepared both to be patient during the long
    and involved class action process and also to sacrifice a good deal of their potential
    recovery to finance the legal costs. For an individual with a major claim like
    Mr. Parker, a class action is self-evidently not the preferable vehicle.
    Apart from his inability to control the litigation, he is unlikely to be able
    to achieve anything like the measure of damages he is seeking for the personal
    injury he suffered.

[26]

Although
    we often distinguish between substantive and procedural rights in litigation
    terms, they are in fact symbiotic. It is not always possible or wise to
    distinguish one from the other. In the overall context, Mr. Parker lost
    substantive rights of significant importance when his motion for an extension
    of time within which to opt out of the class action was denied. In my view, it
    is reasonable to treat the order under appeal as a final order for the purposes
    of determining appeal rights.

[27]

Because
    the removal of Mr. Parkers substantive rights renders the motion judges
    decision final, it is not necessary to resolve the question of whether
    foreclosing the opt-out option constitutes a change of forum.

[28]

In
    light of this outcome, it is unnecessary to consider the costs appeal, which is
    reserved to the panel hearing the appeal on the merits.

[29]

If
    the parties are unable to resolve the costs of this motion, then Mr. Parker may
    file written submissions no more than 3 pages in length within 10 days of the
    date of the release of these reasons. Ontario may file written submissions no
    more than 3 pages in length within 10 days of the date Mr. Parkers submissions
    are due. Mr. Parker may file reply submissions no more than 1 page in length
    within 5 days of the date Ontarios submissions are due.

Released: September 22, 2021 P.L.

P. Lauwers J.A.

I agree. S. Coroza
    J.A.

I agree. Sossin J.A.


