Canada: Proceeding Concurrently In Multi-Jurisdictional Hearings: Form Or Substance?

Last Updated: April 16 2014
Article by Louise Moher and Rebecca Case

When parallel class actions in multiple provinces are resolved by one settlement agreement, procedural and jurisdictional issues may arise regarding the conduct of the settlement approval hearings.  Recent decisions have suggested that the most efficient solution was for concurrent hearings to be held in one site whereby at least one presiding judge sat outside his or her home province.  However, the Court of Appeal for British Columbia has recently ruled that any hearing on a matter commenced in British Columbia must proceed in a British Columbia court, even if the judge is not present in that courtroom.

In recent years, there have been various arrangements to address multijurisdictional hearings in class actions.  The Court of Appeal for British Columbia refers to the Indian Residential Schools class actions settlement where judges of the Superior Courts of Ontario, British Columbia, Quebec, Alberta and Saskatchewan sat in Alberta to hear a motion for approval while judges of the Superior Courts of Manitoba, Yukon, Northwest Territories and Nunavut were linked by telephone conference. Notably, the provincial governments were not parties to these actions and no jurisdictional issues were raised.

In the First Use of the Multijurisdictional Class Action Protocol in a Settlement, the certification and settlement approval hearings in three parallel class actions alleging price-fixing in the chocolate industry were conducted by way of joint video conference between the Ontario, British Columbia and Quebec courts with counsel making submissions in Toronto and Vancouver.  Certification and approval were granted in each jurisdiction and the courts and counsel agreed that proceeding by way of joint video conference resulted in an efficient hearing, albeit with practical difficulties such as the dependence on technology and differences in time zones.

The above arrangements were taken one step further in the supervision of the settlement of the class actions regarding Hepatitis C in the Canadian blood supply. Counsel brought motions in each of the provincial courts for directions regarding the ability of judges from Ontario, British Columbia and Quebec to sit together in Alberta and adjudicate common matters (see Judges to Adjudicate Common Matters in Class Actions Collectively in One Location).  In Ontario, Justice Winkler decided that there was no binding authority that prevented a judge from presiding over a hearing held outside of Ontario:

...a judge of the Superior Court of Justice in Ontario may preside over a hearing that is conducted outside Ontario where the Ontario court has personal and subject-matter jurisdiction over the parties and the issues in the proceeding. This jurisdiction is not lost simply because the court presides over a motion in a location that is outside the court's regular territorial limits. Rather, the court's inherent jurisdiction to control its own process empowers the court to consider if it should exercise its discretion to hold a hearing outside its home province having regard to whether sitting outside the court's home province promotes the interests of justice in the particular case. I would exercise this discretion in the present case.

The judges from British Columbia and Quebec agreed.

The provincial governments, which were parties to these class actions, appealed the decisions in British Columbia and Ontario. In Endean v. British Columbia, 2014 BCCA 61, Justice Goepel, writing for the Court of Appeal for British Columbia, determined that a judge of the Supreme Court of British Columbia could not preside over a hearing that was conducted outside of British Columbia.  The Court held that the law did not permit judges of British Columbia courts to sit outside his or her home province and that any change to this law must be made by the legislature.

The Court in Endean stated that, in any event, the benefits of concurrent hearings may be more modest than suggested because each judge must reach his or her own decision, which is subject to appeal.  Therefore, a concurrent hearing is not a guarantee of finality and an agreed upon result. Further, a concurrent hearing may lead to procedural problems because rules governing practice, procedure, and evidence may differ between provinces.  

The Court determined, however, that a judge need not be physically present at the hearing, as long as the hearing takes place in a courtroom in British Columbia:

... If for reasons of convenience or otherwise, a judge determines that a matter is to be heard by telephone, video conference or other communication medium, there is I suggest no reason why the judge, counsel or witnesses necessarily need to be physically present in the province as long as the hearing itself takes place in a courtroom in British Columbia. Witnesses and counsel, of course, will have the right to be present in the courtroom and cannot be compelled to attend to a location other than a courtroom in British Columbia.

Such a hearing in my view would not offend the common law rule that prohibits judges from conducting hearings outside of British Columbia; although the judge may be located elsewhere, he or she would be exercising his or her jurisdiction and authority in a hearing taking place in British Columbia. The hearing would respect the open court principle as interested members of the public and media would be able to observe the proceedings in a British Columbia courtroom.

The appeal from the Ontario decision is pending. 

The effect of the Court of Appeal for British Columbia's ruling is that multi-jurisdictional hearings may still proceed concurrently but a portion of the hearing must take place in a courtroom in British Columbia, although they may take advantage of video- or teleconferencing if the judge is sitting elsewhere.  This decision reserves the British Columbia's court's authority to its provincial geographic boundaries but recognises modern technological developments. Practically, counsel and the courts remain dependent on technology and must continue to accommodate practical issues such as differences in time zones.

http://lernersclassactiondefence.ca/

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Louise Moher
Rebecca Case
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