In a recent
decision1 that will facilitate proceedings and the
settlement process in national class actions, the Supreme Court of
Canada ruled that superior court judges can sit outside their home
The ruling, Endean v. British Columbia, is an appeal
from two judgments from the
British Columbia3 courts of appeal arising from
related class actions.
As part of the 1999 settlement of the tainted blood class
action, the parties agreed to give a supervisory role to superior
court judges in Ontario, British Columbia and Quebec. It was agreed
that their decisions would take effect only if they were materially
To extend the deadline for filing first claims for benefits from
the settlement funds, class counsel filed contested motions in 2012
in all three provinces to approve the protocol. They proposed
having the three supervisory judges sit together in Edmonton to
facilitate the process, which the provinces opposed.
Motions for direction were brought on the jurisdictional
In B.C., the Court of Appeal held that a judge not physically in
the province may conduct a hearing taking place in the province via
telephone, videoconference or other medium. In Ontario, the Court
of Appeal found that there must be a video conference link to an
Ontario courtroom for such a hearing. The Quebec Superior
Court established that there are no constitutional or statutory
principles that would preclude a Quebec judge from siting outside
the province. This last decision was not appealed.
On the Ontario and B.C appeals, the Supreme Court of Canada
found that provincial statutes governing class actions in both
cases conferred authority upon Ontario and B.C. judges to sit
outside of their respective home jurisdictions.
What's more, these provisions should broadly be interpreted
with an eye on ensuring improved access to justice. For provinces
where there are no such provisions, the court ruled that the
inherent jurisdiction of the judges confers the same authority,
though it noted that the judges who preside over hearings outside
of their provinces do not have any authority to use their coercive
powers. It also found that there are no rules or principles of
common, constitutional or statutory law that prevent judges from
sitting in another province.
Requirement for a video link
The Supreme Court also held that the open court principle does
not require a video link to an open courtroom in a judge's home
jurisdiction. However, three broad considerations should guide a
court exercising its discretion:
The impact on the province's sovereignty of the
The benefits and costs of the proposed out-of-province
And whether any conditions (such as costs or use of a video
link) ought to be imposed.
Two of the justices, Karakatsanis and Wagner, added that the
open court principle "includes an educational aspect and
increased public confidence in the integrity of court
processes". Hence, the requirement for a video link will
depend on the circumstances of the case. Requests for link by the
public, members of the media or counsel should generally be
The impact on class actions
It is now established that Superior Court judges can preside
over a hearing outside of their home provinces in class actions
initiated in their provinces. This should make it easier and less
time-consuming to manage proceedings and settlements in
multi-jurisdictional class actions. Having said that, while the
decision favours lifts some jurisdictional restrictions, judges are
still not allowed to exercise coercive powers outside of their home
provinces. The practical implications remain to be seen.
1. Endean v. British Columbia, 2016 SCC
2. Parsons v. Ontario, 2015 ONCA 158
3. Endean v. British Columbia, 2014 BCCA
The authors wish to thank Daniel-Nicolas El Khoury, Marketing
Intern, for his contribution
The English Commercial Court has published two recent judgments of Mr Justice Popplewell in a single anonymised case concerning the removal of two arbitrators under section 24(1)(d)(i) of the Arbitration Act 1996.
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