Canada: Endean v. British Columbia: An Opening (But Not A Floodgate) For National Class Proceedings

Last Updated: October 21 2016
Article by Alessandra V. Nosko

Most Read Contributor in Canada, November 2016

On October 20, 2016, the Supreme Court of Canada released its decision in Endean v. British Columbia.1 The decision supports the advance of multijurisdictional national class proceedings, but questions remain as to the extent to which such proceedings can be efficiently managed and adjudicated prior to settlement.

Background

The central question in Endean was whether judges can hear motions in a different province. The issue arose in the context of the 1999 national settlement of three concurrent class actions advanced on behalf of those infected with Hepatitis C through the Canadian blood supply. The settlement agreement assigned an independent supervisory role to the courts of British Columbia, Ontario and Québec; however, any court order will only be effective if the orders of the other two courts are materially identical. As the implementation of the settlement progressed, three separate motions were brought each time an issue needed to be determined in accordance with the settlement agreement.

In 2012, class counsel brought three separate motions to approve a protocol that would extend the deadline for filing claims under the settlement, and proposed that the motions be heard by the three supervisory judges sitting together in one location. The provinces opposed the proposal, and motions for directions were brought with respect to whether the supervisory judges could sit outside their home provinces to hear motions under the settlement agreement.

Judicial History

The Ontario, British Columbia and Québec Superior Courts determined that judges of those courts have jurisdiction to sit outside their home provinces in order to hear motions in these circumstances. The Attorneys General of Ontario and British Columbia appealed the decisions in those provinces. While the reasons of the appellate courts differed, the result in each case was that, while the judges could sit outside their home provinces, a video link was required between the extra-provincial courtroom and the home province. Class counsel appealed to the Supreme Court of Canada; the two appeals were heard together.

Jurisdiction to Sit Extra-Provincially

Justice Cromwell (for the majority of the Court, the minority concurring) held that section 12 of the Ontario and British Columbia class proceedings statutes granted the judges of those provinces broad discretionary powers to manage the proceedings, including the power to sit outside their home province if necessary to ensure the fair and expeditious determination of the case. The Class Proceedings Acts are to be interpreted broadly, in accordance with their purpose of enhancing access to justice.2

The broad interpretation of class actions statutes and judicial powers thereunder are not unlimited; the reach of the Court's statutory discretion is limited by any contrary common law, statutory and constitutional principles.3 Therefore, while a provincial court judge has the discretion to sit outside his or her home province in a pan-national class proceeding, the discretion is best suited to a hearing without oral evidence (though the Court declined to expressly address whether a judge sitting extra-provincially would be able to exercise any coercive powers)4 and the hearing must not contravene the law of the place of the hearing.5

The Court also concluded that the discretionary power to sit extra-provincially is not restricted to judges in provinces with statutory provisions similar to the Ontario and British Columbia Class Proceedings Acts. The type of hearing proposed by class counsel could be convened pursuant to the Court's inherent jurisdiction to regulate its process and proceedings, subject to the restrictions described above.6

No Video Link Required

The broad discretion to sit outside a judge's home province (where necessary) is not fettered by any requirement to establish a connection to the home province, whether by video link or otherwise. An extra-provincial hearing does not violate the open court principle; the fundamental precepts of that rule have no bearing on whether the hearing is held within the boundaries of the judge's home province.7

Framework for the Exercise of Judicial Discretion

The parties agreed that, if the judges of Ontario and British Columbia had the jurisdiction to sit outside their home province, it was appropriate for them to do so in the circumstances of the case. However, the Court provided some suggestions as to factors to be considered in assessing the exercise of discretion to sit extra-provincially, as follows:

  1. the judge must have subject-matter and personal jurisdiction over the matter;
  2. the judge should consider whether the decision will impinge or be seen as impinging on the sovereignty of the proposed hearing location, create impermissible extraterritorial effects in that province or prevent the court from competently presiding over the hearing;
  3. the judge should conduct a cost/benefit analysis which includes consideration of the nature of the proceeding, fairness to the parties, coverage by the media of the home province, and the broader interests of the administration of justice (e.g., time, costs, the public interest in the location of the hearing and access to justice); and
  4. the judge should consider whether any terms should be imposed, including with respect to extraordinary costs and whether a video link to the home province is required. On the question of the video link, Justices Wagner and Karakatsanis held (in concurring reasons) that, if a request for a video link is made, it should generally be granted.8

Conclusion

The Endean decision confirms the long-held principle that class proceedings statutes are remedial and should be interpreted broadly, in accordance with the objective of enhancing access to justice. It also provides support for the advance of efficient national class proceedings and coordination of concurrent claims. However, whether the decision will significantly affect the landscape of class actions in Canada remains to be seen. The framework provided by the Supreme Court is best-suited to the settlement context. The scope of national class actions will likely continue to develop as questions relating to the efficient adjudication of proposed national class proceedings arise in carriage, certification and settlement approval hearings.

Footnotes

1 2016 SCC 42.

2 Ibid. at paras. 25-39.

3 Ibid. at para. 40.

4 Ibid. at para. 78.

5 Ibid. at paras. 45-58.

6 Ibid. at paras. 59-62.

7 Ibid. at paras. 63-70.

8 Ibid. at para. 101.

About BLG

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.