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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Louise Moher
Rebecca Case
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions