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lundi 30 mars 2015

The Use of Technology to Resolve Jurisdictional Issues

By Sarah D. Pinsonnault

The theme of technology is in the air today as the Young Bar of Montréal is presenting, for the ninth consecutive year, its LegalIT conference – a conference focused on the convergence of information technology and law. With that, we bring to you a recent decision, rendered by the Court of Appeal for Ontario, that deals with this topic. In Parsons v. Ontario, 2015 ONCA 158, the Attorney General of Ontario appealed from a first instance decision that ruled that a Superior Court Justice may preside over a hearing that is being conducted outside of the province by virtue of the inherent jurisdiction of the Superior Court to control its own process. Among its grounds of appeal is the argument that the open court principle precluded an Ontario judge from conducting a hearing outside of the province and that the only way to get around this impediment was through the use of video technology. The three judges sitting on appeal were however divided on the necessity of a video link in light of the circumstances in the case.


Following the Canadian tainted blood scandal that began in 1986, those infected with the Hepatitis C virus by the Canadian blood supply initiated class actions in Ontario, Québec, and British Columbia against the Canadian Red Cross Society and the federal, provincial and territorial governments. These proceedings ultimately resulted in a pan-Canadian settlement. As of 1999, superior court judges from Ontario, Québec, and British Columbia have supervised the implementation and enforcement of the settlement agreement.

In 2012, issue arose as to whether the deadline to file a claim for compensation could be extended. As opposed to having three separate motions and potentially three conflicting judgments, class counsel proposed that a single hearing take place before the three supervisory judges in Edmonton, Alberta. Motions were subsequently presented in each respective province for directions on the jurisdictional issue and all motion judges ruled that the supervisory judges had the discretionary authority to conduct a hearing under the Settlement Agreement outside of his province. These decisions were however appealed (except for the Québec decision which can be read here).

The fundamental issue raised in the Attorney General of Ontario’s appeal was essentially the physical location of the hearing. It argued that the motion judge erred in concluding that the superior court’s inherent jurisdiction allowed the supervisory judge under the Settlement Agreement, to either participate in a joint hearing outside of Ontario or, alternatively, that the other two supervisory judges from British Columbia and Québec were allowed to sit in Ontario.

Furthermore, the Attorney General of Ontario held that the motion judge “failed to give sufficient weight to the video-conferencing option” (para. 158) and that by ordering an out-of-province hearing, the open court principle - i.e. the “hallmark of a democratic society” – would be imperiled since Ontarians would not be able to see and hear what transpired in the courtroom as it was happening in real time.


The three Ontario Court justices sitting on appeal were divided on the issue of the video link and whether its presence was necessary to preserve the open court principle.

Justice LaForme J.A upheld the motion judge’s decision and concluded that “the principle of open courts is not absolute” (para. 142) and that the “court’s discretionary authority to hold an out-of-province hearing does not depend on the presence of a video link” (para. 145):

“[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.”


[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.”

Juriansz J.A. on the other hand found that, in accordance with Ontario’s Rules of Civil Procedure (rule 1.08), the Ontario supervisory judge may preside an out-of-province hearing, as long as a video link back to an Ontario courtroom is provided. Accordingly, the open court principle would be preserved and there would be no need to resort to the question of the court’s inherent jurisdiction.

As for Lauwers J.A., while he agreed with Juriansz, J.A. in that “the motion judge erred in concluding that a video link to a courtroom in Ontario is not required” (para. 235), he found that the reliance on the Ontario Rules of Civil Procedure was insufficient to dispose of the appeal and that it was therefore necessary to resort to the issue of the inherent jurisdiction of the court. As opposed to creating a “legal fiction” through the use of Rule 1.08, he preferred instead to clearly address the fact the court was not physically sitting in Ontario. He therefore concluded that a judge of the Superior Court has the inherent jurisdiction to hold a hearing outside Ontario but that doing so without the presence of a video link would violate the open court principle and that the appeal of the motion judge’s order should be allowed “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…” (para. 236).

To read this decision in its entirety and other elements discussed therein, click here.

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