Canada: Multijurisdictional Class Actions: Fewer Boundaries

Multijurisdictional class actions simultaneously prosecuted in various provinces are more and more common. In the matter of Endean v. British Columbia, 2016 SCC 42, the Supreme Court of Canada recognized that superior court justices handling such cases could sit outside their home provinces jointly with their counterparts from other provinces if in the best interests of justice.

The History of the Litigation

During the 90s, various class actions were brought in British Columbia, Quebec and Ontario on behalf of individuals infected with hepatitis C by the Canadian blood supply between 1986 and 1990. In 1999, a pan-Canadian settlement agreement was reached, which assigned a supervisory role to the court of each of these provinces for the implementation and resolution of any issue arising therefrom, if any.

In 2012, motions were filed before the supervisory judges of British Columbia, Quebec and Ontario in relation to the settlement agreement. It was then proposed that that the motions be heard at the same time by the three judges sitting together in one location.

The Attorney General of each of these provinces opposed the proposal on the basis that the judges did not have the jurisdiction to conduct hearings outside their home province. Each of the courts dismissed the opposition and concluded that was permissible for the superior court judges to sit in a province other than their respective home province with their judicial counterparts. The Ontario Court of Appeal confirmed this decision, while the Court of Appeal for British Columbia set it aside, not appeal having been brought in Quebec. 

Before the Supreme Court of Canada, all parties agreed that superior court judges have a discretionary power to sit together outside their home provinces to hear a motion without oral evidence in the context of a pan‑Canadian settlement agreement. The source of this power and its conditions were however contentious.

The Decision of the Supreme Court of Canada

The Supreme Court of Canada recognized the subject matter and personal jurisdiction, as well as the discretionary power of a judge of a superior court to sit outside his or her home province with other judges being charged with the management of related multijurisdictional class actions, provided that it is not necessary to resort to the court's coercive powers for the hearing to take place and that same is not contrary to the law of the province in which it is to take place.

A broad interpretation to class action legislation confirms and reflects the inherent authority of judges to control procedure, fulfil the purpose of class actions and favor access to justice, without being stymied by procedural technicalities. Such is also not contrary to the Constitution.

A key question, therefore, is whether there are any rules or principles of common, constitutional or statutory law that prevent a judge from sitting outside his or her province for the purposes in issue here. In my view, there are none. [...] But absent some clear limitation, my view is that the inherent jurisdiction of the superior courts extends to permitting the court to hold the sort of hearing in issue here.

According to the court, permitting such hearings is not giving rise to concerns about sovereignty, dignity of the courts or extraterritorial exercise of coercive powers. It is a practical solution that fosters the objective of a class action.

Also, such a hearing does not require setting up a video link between the out-of-province courtroom where the hearing takes place and a courtroom in the judge's home province. The absence of such link is not infringing the open court principle, being understood that the media and the public can attend the hearing where it is taking place. Nonetheless, the judge could refuse that a video link be set up only for a good reason.

The discretionary power of a judge of a superior court can only be exercised in the best interests of justice. The following elements are to be considered in that regard:

a) Is sitting in another province could impinging on the sovereignty of that province or create impermissible extraterritorial effects?

b) Is a hearing outside the province beneficial, having regard to its costs, the nature of the proceeding, the fairness to the parties, the ability and willingness of the media and public to attend and the broader interests of the administration of justice?

c) What conditions should be imposed to ensure that the interests of justice are best served by an out-of-province hearing?

The court also emphasized that other factors may apply depending of the circumstances of the cases and that other issues may arise in relation to the exercise of this discretionary power.

In a concurring opinion to that of the majority, Justices Karakatsanis and Wagner affirmed, with regard to the open court principle, the importance of giving effect to educational of a public hearing, notably to ensure that class actions procedure remains visible and understandable to class members and the community.


The decision in Endean v. British Columbia supports the need for the courts and parties to implement greater ressources to meet the ends of justice in class proceedings and, whenever required, to simply process in multijurisdictional class actions, where often the same issues seeking the same purpose are successively repeated in various jurisdictions.

As a joint hearing with numerous judges from as many provinces is typically required for the approval of a multijurisdictional settlement agreement, the courts and the parties should exercise great care and ensure that the rights of the class members are acknowledged and can easily be exercised to avoid causes to challenge the validity of a settlement agreement or the conclusions of a judgment approving it if they were not provided with a real and meaningful opportunity to be heard.

Otherwise, the prospect of resolving any issue in multijurisdictional class actions at once can only benefits the parties and the justice system as a whole.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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