Canada: Taking The Show On The Road: Class Action Judges Can Sit Outside Their Province

The Supreme Court of Canada held in Endean v. British Columbia that superior court judges in British Columbia and Ontario have broad statutory authority and discretion under their respective Class Proceedings Acts to conduct hearings outside of their home jurisdiction for the purpose of managing national class actions. Unlike the appellate courts below, the Supreme Court found that a video link to an open courtroom in the judge's home jurisdiction was not legally required. The Court's decision in Endean is strong endorsement of the broad jurisdiction that exists under class proceeding legislation and will facilitate the efficient management of multijurisdictional class actions across Canada.

Background

The Supreme Court's decision arises out multi-jurisdictional class actions concerning the infection of persons with Hepatitis C through the Canadian blood supply. Courts in Ontario, British Columbia and Québec certified parallel class proceedings, which were settled in 1999. The settlement assigned a supervisory role to the superior courts of all three provinces. It also provided that all three courts were required to issue identical orders for any order to be effective.

In 2012, class counsel proposed that all three supervisory judges sit together in one location to hear submissions on parallel motions. The Attorneys General of Ontario, British Columbia and Québec all objected to the judges sitting outside the territorial boundaries of their province. Class counsel then sought directions from the courts in all three provinces.

Initially, class counsel succeeded in all three provinces. Appeals were taken only in Ontario and British Columbia.

The Court of Appeal Decisions

As previously discussed on this blog, the British Columbia Court of Appeal in Endean held that while a B.C. judge has no jurisdiction to conduct a hearing that takes place outside of the territorial boundaries of the province, a B.C. judge could nevertheless physically sit outside the province in these circumstances, provided that the B.C. public, parties and counsel could attend the hearing in a B.C. courtroom linked to the judges by teleconference or video conference.

The Ontario Court of Appeal held in the related case Parsons that the basis for the power to conduct a hearing outside the province was the superior court's inherent jurisdiction, but concluded that a video link was required between the out of province courtroom and an Ontario courtroom.

The Supreme Court Decision

All of the parties agreed that superior court judges power to sit together outside their home provinces to hear a motion without oral evidence in the context of a pan-Canadian settlement agreement. However, the parties disagreed about two related issues:

  1. What is the source of authority for the judge to sit outside his or her home jurisdiction: Is it statutory or an aspect of the inherent powers of a superior court?
  2. Is a video link to an open courtroom in the judge's home jurisdiction a condition for the exercise of this authority?

Ultimately, the Supreme Court of Canada concluded that section 12 of both the Ontario and British Columbia Class Proceedings Acts granted superior court judges in those provinces the discretionary statutory power to sit outside their home provinces, and a video link to an open courtroom in the judge's home jurisdiction was not required by the open court principle.

Broad Statutory Powers

Section 12 of both Acts provide that the court "may at any time make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms it considers appropriate."

The Supreme Court found that a broad interpretation of these statutory powers "helps to fulfil the purpose of class actions and to ensure that procedural innovations in aid of access to justice will not be stymied by unduly technical or time-bound understandings of the scope of the class action judge's authority."

In these circumstances, where the superior courts each had personal and subject-matter jurisdiction over the cases, there were no constitutional, statutory or common law limitations that restricted the scope of section 12 of the Acts or prevented a judge from sitting outside his or her province in this type of hearing. The Supreme Court noted in particular that:

  • The motion was adjudicated on a paper record – which meant that the judges would not be called on to exercise any coercive powers which may be subject to territorial limits;
  • The hearing is not contrary to the law of the place in which it was held; and
  • The proceedings involved litigation wholly within Canada.

These points raise interesting open questions about whether the broad powers to sit outside of a home jurisdiction would extend to joint hearings including oral evidence (where a court's coercive powers may be engaged) or joint hearings in a cross-border class proceeding.

While the outcome is uncertain in these circumstances, some guidance may be taken from the Supreme Court's agreement with Chief Justice Winkler that taking a dogmatic stance on these issues risks leaving the common law unsuited "to modern realities of increasingly complex litigation involving parties and subject matters that transcend provincial borders".

Exercising the Discretion to Sit out of Province

The Supreme Court also commented on the factors to be considered in exercising the court's discretion to hold a hearing outside its territory. It noted that such discretion must be exercised in the interests of the administration of justice, and should be guided by the following broad considerations:

  • whether sitting in another province will impinge or could be seen as impinging on the sovereignty of that province;
  • whether there are benefits or costs to the proposed out of province proceeding; and
  • whether any terms should be imposed, such as conditions as to the payment of extraordinary costs or use of a video link to the court's home jurisdiction.

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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