Ontario's Court Of Appeal Clarifies Class Member's Appeal Rights Post Settlement Approval

• Published date: 03 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Class Actions, Trials & Appeals & Compensation
• Law Firm: McMillan LLP
• Author: Mr Brett Harrison, Paola Ramirez and Anthony Labib (Articling Student)

A recent decision of the Ontario Court of Appeal will be of interest to parties seeking to challenge court-approved settlements that attempt to oust or modify the jurisdiction of Ontario's Court of Appeal.¹ In dismissing a motion to quash brought by class counsel, the panel reminded counsel that parties cannot contract out of appeal rights to the Court of Appeal, unless doing so is permitted by statute. Once the rights of litigants are finally disposed of by a lower court, the Court of Appeal retains jurisdiction to hear an appeal unless otherwise expressed by statute.

The decision also suggests that any objections to a class member's standing to appeal a decision needs to be raised at the earliest of opportunity and confirmed that the time to appeal begins to run from when the meaning of a judgment is made certain. Additionally, for the first time, the Court of Appeal ruled that class members may appeal under the general rights of appeal under the Courts of Justice Act ("CJA").

Having overcome this hurdle, the appeal brought by Class Action Capital ("CAC"), on behalf of certain class members, will therefore proceed on an expedited basis led by McMillan LLP.

The Appeal and Motion to Quash

The appeal arose out of a class action alleging that the defendants formed an illegal cartel to restrict competition and fix prices for cathode ray tube products. Settlements were reached and approved by the Superior Court of Justice ("SCJ") on April 20, 2018.

The plan of distribution approved by the courts (the "Distribution Protocol") contains a standard deficiency process, requiring the claims administrator to (a) notify class members of deficiencies in the claims, and (b) give class members 30 days to correct such deficiencies, before deciding whether a class member is entitled to the settlement benefits (the "Deficiency Process").

In early 2021, certain class members appealed the decision of the claims administrator, disputing the threshold used to assess their proof of purchase. While the motions judge concluded that the claims administrator had interpreted documentary proof of purchases too narrowly and had not given sufficient reason for denying the claims, the decision did not expressly require the claims administrator to implement a Deficiency Process (the "January Decision"). Thereafter, class counsel took the position that the claims administrator was only required to reconsider the claims in accordance with the motion judge's directions. Class counsel...