Court Of Appeal Addresses Novel Question Of Appellate Jurisdiction In Class Proceedings

• Published date: 18 October 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr W. David Rankin

The Court of Appeal for Ontario recently addressed a novel question of appellate jurisdiction: is an order refusing to extend the time to opt out of a class action final or interlocutory? If final, the appeal lies to the Court of Appeal under s. 6(1)(b) of the Courts of Justice Act. If interlocutory, the appeal lies only in the Divisional Court with leave. Justice Lauwers answered this question in Johnson v. Ontario, 2021 ONCA 650: the order is final and appealable as of right in the Court of Appeal.

The final-interlocutory distinction continues to be challenging, particularly in novel areas. Lord Denning M.R. once wrote (before England dropped the distinction) that the "question of 'final' or 'interlocutory' is so uncertain, that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point" (Salter Rex & Co. v. Ghosh, [1971] 2 All E.R. 865 (C.A.)). Where the practice books are silent, as in Johnson, resort must be to first principles.

Background of Johnson

Johnson involved a certified class proceeding on behalf of persons incarcerated at Elgin Middlesex Detention Centre, a prison run by the defendant Her Majesty the Queen in Right of Ontario. Unaware of the class action, a former inmate commenced an overlapping action seeking damages for injuries suffered as a result of delayed medical treatment while incarcerated. By the time the former inmate commenced his individual action, the deadline to opt out of the class proceeding had already expired. Notice of the class proceeding did not reach the former inmate, as the notice was sent to the apartment he had shared with his father prior to his arrest, rather than to the institution where he was incarcerated when the notices were circulated.

The Province asked the former inmate to discontinue his personal litigation, or to limit his claims so as not to overlap with the certified class proceeding. The former inmate did neither and instead sought an extension of time to opt out of the class proceeding. The motion judge refused this relief.

First principles

Is refusing to extend the time to opt out of a class proceeding final or interlocutory? On one hand, the order appears interlocutory as it does not determine the real matter in dispute between the parties. On the other hand, the order appears final as it effectively terminated the former inmate's personal litigation (as he could not proceed both as a class member and as an individual plaintiff). The result...