The Supreme Court of Canada has granted leave to appeal from two
appellate decisions dealing with the issue of whether a judge from
one province may sit with judges from other provinces to hear
argument on a motion or application in a multi-jurisdictional
Canadian class action. Both appeals arise from proceedings
following a pan-Canadian settlement in the three class actions
against the Canadian Red Cross Society brought by patients infected
with hepatitis C through tainted blood.
update earlier this year on the Ontario Court of Appeal's
decision on this issue, Parsons v Canadian Red Cross
Society,1 we reviewed the court's finding
that Ontario Superior Court of Justice judges may sit in another
province with judges from other provinces as long as there is a
video link to a public courtroom in Ontario.
The Supreme Court has granted leave to appeal this decision and
indicated the matter will be heard concurrently with an appeal of a
decision rendered by the British Columbia Court of Appeal on the
The second appeal is from the unanimous British Columbia Court
of Appeal decision in Endean v Canadian Red Cross
Society2 in which the court found that while
a judge might preside over a hearing from outside British Columbia
(by telephone or video conference, for example), the hearing itself
must take place in a BC courtroom.
This finding seems inconsistent with the Ontario Court of
Appeal's conclusion that an Ontario judge might preside and the
hearing might occur out of province, provided there is no
impediment to access by Ontarians to the proceedings from a court
within provincial borders.
The third of the class actions, which were separately certified
in each province, was brought in Quebec. The Quebec
decision3 authorizing its judges to sit outside the
province has not been appealed.
The granting of leave to appeal by the Supreme Court indicates
the court views this issue as a matter of national importance. In
the class action context, the Supreme Court's direction on
these issues will provide much-needed clarity regarding the
procedures available for dealing with multi-jurisdictional class
actions, including any procedural steps that may be taken
simultaneously in the courts of multiple provinces.
1. 2015 ONCA 158.
2. 2014 BCCA 61.
3. Honhon c Canada (Procureur
général), 2013 QCCS 2782.
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