On June 19, the British Columbia Supreme Court accepted that in certain circumstances B.C. law permits a British Columbia Supreme Court judge to preside over a hearing conducted outside the province as part of a joint hearing in the context of a pan-Canadian class action.
The court accepted that the court's inherent jurisdiction permits a provincial court to consider if it should exercise its discretion to hold a hearing outside its home province, if such a hearing promotes the interests of justice in the particular case. The decision illustrates the flexibility Canadian courts are prepared to adopt in dealing with multi-jurisdictional class proceedings.
The British Columbia Supreme Court made the ruling in the context of pan-Canadian class proceedings arising out of the infection of persons with hepatitis C by the Canadian blood supply. The actions in various provinces were settled by way of a pan-Canadian settlement agreement approved in 1999 by orders of the courts in British Columbia, Quebec and Ontario. The court in British Columbia was asked, by way of a motion for directions, whether a superior court judge in British Columbia could sit with other provincial court judges in another province to hear applications under the settlement agreement.
The question had been raised because the Chief Justice of Ontario, the Chief Justice of the Quebec Superior Court, and the former Chief Justice of the British Columbia Supreme Court (now Chief Justice of the Court of Appeal) sought to hear three distinct applications concurrently brought in the three courts while they were in another province for other meetings.
In accepting that the British Columbia Supreme Court had the necessary jurisdiction, the court noted that the British Columbia Supreme Court Civil Rules encourage the just, speedy and inexpensive determination of every proceeding on its merits, in a manner proportional to the amount involved, the importance of the issues in dispute and their complexity.
These general considerations supported the view that such a hearing could be held outside the province if appropriate and there are no constitutional principles or rule of law preventing such a hearing. Further, given the use of videoconferences permitting submissions and testimony from counsel and witnesses anywhere in Canada, the next logical step, according to the court, would be for the court to physically join the parties there.
The B.C. Supreme Court noted that there was no question it had the subject matter and personal jurisdiction over the parties and that the court is vested with a general jurisdiction at law and equity to deal with the matter before it. Hearing the underlying application outside British Columbia would simply be an exercise of the court's jurisdiction for its territory, over persons and a subject matter within its jurisdiction. The court adopted the analysis of Chief Justice Winkler of the Ontario Court, who had rendered a similar decision, stating:
41. A court should exercise its discretion to hold a hearing outside its home province sparingly. However, the interests of justice may in certain situations be such that the court is entitled - indeed, perhaps even required - to exercise its jurisdiction to hold a hearing outside its home province. When the exercise of this discretion takes place in the context of a class proceeding, the recognized goals of achieving judicial economy and enhancing access to justice must be taken into account. Therefore, these goals must be considered in determining the location of the hearing.
Issues arising from multi-jurisdictional class proceedings continue to challenge Canadian provincial courts. The Ontario Superior Court and British Columbia Supreme Court decisions demonstrate the courts' willingness to take steps to ensure multi-jurisdictional litigation can be flexibly and efficiently managed in this new age of multi-jurisdictional litigation.
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