On November 5, 2015, the Supreme Court of Canada (the
"SCC") granted leave to appeal in two related cases:
Endean v. British Columbia, 2014 BCCA 61,
and Parsons v. Ontario, 2015 ONCA 158. The
resolution of these two cases will shape the scope of
inter-jurisdictional coordination for national class actions in
Canada by determining whether or not provincial judges may sit
outside their own jurisdiction when supervising a settlement in a
national class action.
These cases stem from multi-jurisdictional claims pertaining to
individuals infected with Hepatitis C by the Canadian blood supply
between 1986 and 1990. Separately, these claims were certified as
class proceedings in the provinces of British Columbia, Ontario,
and Quebec. In 1999 the class proceedings culminated with the
signing of a national settlement agreement. The Supreme Court of
British Columbia, the Superior Court of Justice for Ontario, and
the Superior Court of Quebec were each assigned a supervisory role
over the implementation and enforcement of this settlement
agreement. Included in the settlement agreement is the condition
that any court order issued by one of the aforementioned courts,
would only take effect upon materially identical orders being
issued by the other two courts.
Such a condition created problems with the coordination of the
settlement agreement between the three jurisdictions. This was
exemplified in 2012 when class counsel sought an extension to the
time allotted for making a claim for compensation. To help
facilitate this application, class counsel proposed a single
hearing before the three supervisory judges at one location –
the proposed location was Alberta, a neutral jurisdiction in this
matter. Doing so would have avoided hearing separate motions in
each of the three provinces. In response, the Attorneys Generals of
the respective provinces objected to their judges sitting outside
their territorial boundaries.
As a result, class counsel sought direction from the courts in
all three of the provinces. In separate decisions, two of the three
courts held that the inherent jurisdiction of the courts permitted
judges to sit outside their territorial jurisdiction if the court
had personal and subject matter jurisdiction over the parties and
the issues to the proceeding.
The first court to hold that judges were permitted to sit
outside the territorial boundaries of their court was the Ontario
Court of Appeal in Parsons. Here the Court considered
whether Ontario judges had jurisdiction to sit outside the
territorial boundaries of the province of Ontario. The Court held
that a judge of the Ontario Superior Court may participate in joint
motions outside of Ontario when supervising a settlement agreement
in a national class action.
In Quebec, the Superior Court of Quebec in Honhon v.
Canada (Procureur general), 2013 QCCS 2782, held the same
result as the Ontario Court of Appeal in Parsons.
However, the British Columbia Court of Appeal did not follow
this line of authority and, instead, applied the English common law
rule that prevented judges from sitting outside of England. The
Court held that British Columbian judges have no jurisdiction to
conduct hearings outside the province of British Columbia by
reasoning that allowing judges to do so would endanger the open
courts principle. The Court went on to state that if this principle
is to be contravened, it is for the legislature to authorize.
Following these decisions, there now stands conflicting
authorities on the question at issue. As a result, the Ontario and
British Columbia decisions have been appealed with leave to appeal
to the SCC granted. Whether the SCC will favour the English common
law rule applied in the British Columbia decision or the approach
used in the Ontario decision and subsequently affirmed in the
Quebec decision, remains to be seen. What is certain though is that
whichever the result of these appeals, together they will shape the
scope of inter-jurisdictional coordination for national class
actions in Canada.
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.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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