November 13, 2015, I blogged about the Supreme Court of Canada
granting leave to appeal in two related cases: Endean v. British Columbia, 2014 BCCA
61 and Parsons v. Ontario, 2015 ONCA
158. These cases raised the issue of the scope of
inter-jurisdictional coordination for national class actions in
Canada by determining whether or not judges of provincial superior
courts were able to sit outside their home jurisdiction when
supervising a settlement of a national class action.
On October 20, 2016, the Supreme Court answered this question.
InEndean v. British Columbia, 2016 SCC
42, the Court ruled unanimously as to result. Mr. Justice
Cromwell, writing the majority reasons, ruled that that judges in
Ontario and British Columbia
"...have the discretionary statutory power ... to sit
outside their home provinces, and a video link to an open courtroom
in the judge's home jurisdiction is not required" (see
The Supreme Court has, as a result, removed a shadow that was
cast over national class actions which required management in
multiple Canadian jurisdictions.
The decision is interesting from a number of perspectives. The
Court found the authority to conduct hearings outside of a
judge's home jurisdiction in the class action legislation in
Ontario and British Columbia. It did not find it necessary to
rely upon the inherent jurisdiction of provincial superior courts
to control their own processes. However, this finding by
itself would have left a void in provinces or territories whose
class action legislation differed from Ontario and British Columbia
(or where there is no class action legislation). In order to
fill this gap and not create a patchwork across the country, the
Court found that the statutory provisions reflected and confirmed
the inherent jurisdiction of provincial superior court. So
judges of other provinces or territories are able to rely on that
jurisdiction, if necessary due to the absence of express statutory
authorization, to hold hearings outside of their home
The Court also discussed the "Open Court" principle
and ultimately found it did not require a video link to a home
jurisdiction open court in every case. Rather, whether a video link
is necessary was left to the discretion of the judge.
Finally, the Court wrote that in exercising the discretion to
determine whether to hold a hearing outside the home jurisdiction,
a judge should consider (1) weigh the benefits and costs of an
out-of-province proceeding, including the issue of fairness to the
parties, availability of the media and the interests of justice;
and (2) whether terms, such as a video link, should be imposed to
serve the interests of justice.
In the end, the Supreme Court has provided a principled and
practical solution to allow the effective management and
administration of national class actions.
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A recent decision of the Ontario Court
of Appeal, D'Onofrio v. Advantage
Car & Truck Rentals Ltd., 2017 ONCA 5,
asks whether a party who takes "no
position" on a summary judgment
motion is later bound by the motion
judge's findings in the ongoing
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