Canada: Out-Of-Province Class Actions Go To The Supreme Court Of Canada

Last Updated: November 17 2015
Article by Craig A. B. Ferris, QC

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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Craig A. B. Ferris, QC
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