Sarah D. Pinsonnault
Articles du même auteur
30 Mar 2015

The Use of Technology to Resolve Jurisdictional Issues

Par Sarah D. Pinsonnault, avocate

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.

“[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
, 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
(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

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
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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