Mr. Hamm, Mr. Keepness, and Mr. Tobin (the “Plaintiffs”) filed an Amended Statement of Claim against the Defendant (“Canada”) alleging that while inmates at the Edmonton Institution, they were placed in administrative segregation for 43 days in violation of various freedoms under the Canadian Charter of Rights and Freedoms (the “Charter”) (collectively, the “Underlying Action”). In the Courts below, the Plaintiffs applied, unsuccessfully, to a Master and the Chambers Judge (on Appeal) for an Order striking Canada’s Statement of Defence and granting Summary Judgment. The Plaintiffs appealed the Decision of the Chambers Judge, upholding the Master’s Decision (the “Appeal”).

Summary Judgment had already been granted to class members represented in two related class actions brought before the Ontario Superior Court of Justice (“ONSC”): Brazeau v Attorney General (Canada), 2019 ONSC 1888 and Reddock v Canada (Attorney General), 2019 ONSC 5053 (the “Class Actions”). Canada had appealed both Class Actions decisions which also addressed the conditions of administrative segregation, the effects of prolonged segregation, and alleged breaches of the Charter. In the Appeal, Canada argued that the Plaintiffs were also class members of either, or both, of the Class Actions. Canada sought, pursuant to Rule 1.4(2)(h), an adjournment of the Appeal: (1) pending a determination of its own stay Application of the Underlying Action (the “Stay Application ”); (2) if the Stay Application was granted, a further adjournment pending final disposition of the Class Actions; or (3) alternatively, requiring that the Plaintiffs obtain leave to opt out of the Class Actions.

Justice Feehan noted His Lordship’s jurisdiction under Rule 14.37(1) as a single Appel Judge to hear and decide any Application incidental to an Appeal. Feehan J.A. further noted, under Rule         14.73, that in addition to the powers provided for in other Rules a single Appeal Judge may adjourn any Appeal or matter, with or without conditions. After reviewing the relevant jurisprudence, Justice Feehan found that while there is a rebuttable presumption of prejudice from delay in Fast Track Appeals, an Appeal may be adjourned where there is considerable danger of prejudice or conflicting decisions and where the least harm will be done by not making a final decision.

Justice Feehan found that the Stay Application was due to be heard in Master’s Chambers on November 18, 2019 and that the Appeal was to be heard on November 25, 2019. His Lordship concluded by finding that, since there was only a single week between the Application and the Appeal, it would be wise not to prejudge the Stay Application. Accordingly, His Lordship adjourned the Appeal until after a final determination of Canada’s Stay Application.