Cutting Ties: Supreme Court of Canada lays foundation for judges to roam when managing national class actions

The Supreme Court of Canada recently released its decision in Endean v. British Columbia and the companion case of Parsons v. Ontario: 2016 SCC 42.[1]  The Court’s decision articulates a framework for the superior courts to conduct an extraterritorial hearing in the interest of managing a national class action.  Yet the Court left many thorny issues untouched.  Because this was a case in which personal and subject matter jurisdiction were conceded, there was no need to tackle the difficult questions raised by decisions like Meeking v. Cash Store Inc., 2013 MBCA 81.[2]  We will have to wait for clarity on the circumstances in which deference is owed to the result of a class proceeding in another jurisdiction. Nor was this a case in which the court’s coercive powers were required, as the motion at issue was to proceed on a paper record. Rather, Endean and Parsons are important because they offer a toolkit with which to manage the scale, complexity, and geographic realities of pan-Canadian proceedings.


Concurrent class proceedings were certified in Ontario, B.C., and Quebec in respect of claims by people who contracted Hepatitis C from the Canadian blood supply between January 1, 1986 and July 1, 1990. The B.C. and Quebec proceedings included residents of those provinces, while the Ontario proceeding included all other claimants.  A national settlement was reached on June 15, 1999.  In order to effect this settlement, the governments of the three territories and all of the provinces except British Columbia and Quebec attorned to the jurisdiction of the Ontario courts, and they were included as defendants in the Ontario action.

Pursuant to the terms of the settlement, supervisory jurisdiction rests with the courts of Ontario, British Columbia., and Quebec, and each court must exercise its jurisdiction independently.   The settlement agreement further provides that the order of one court will only take effect once the other two courts make substantially identical orders.  As a matter of convenience, therefore, class counsel proposed that the Ontario, British Columbia, and Quebec supervisory judges sit together in Alberta to hear an upcoming motion that would proceed on a paper record.  Ontario and British Columbia refused and the matter came before Winkler C.J.O., sitting as a judge of the Superior Court of Justice.

Winkler C.J.O. held that the Superior Court of Justice’s “inherent jurisdiction to control its own process” permitted it to sit outside of Ontario for the purpose of hearing a contested motion on a paper record. Bauman C.J.S.C. followed Winkler C.J.O.’s decision in British Columbia.  Roland C.J.S.C. likewise followed the decision of Winkler C.J.O. in Quebec, finding that there was no constitutional or statutory bar to a judge sitting outside of the province, and holding that the court should therefore exercise its inherent jurisdiction to hold a joint hearing for the benefit of all parties.

Ontario and British Columbia both appealed, but Quebec did not. The Court of Appeal for British Columbia allowed the appeal, but found that a judge could participate remotely in a hearing by maintaining a video link to the courtroom.  By contrast, in three separate judgments, a majority of the Court of Appeal for Ontario largely dismissed the appeal, finding that an Ontario court could hear a contested motion while sitting in another province, so long as it maintained a video link to an Ontario courtroom.  Both Ontario and class counsel sought and obtained leave to appeal to the Supreme Court of Canada.

By the time this case reached the Supreme Court of Canada, the parties agreed that the three supervisory courts could convene a hearing in another province or territory. There were therefore two issues before the Court.  The first issue was the basis for the court’s jurisdiction, whether in statute or inherent jurisdiction.  The second issue was whether a court sitting in another province or territory is required to maintain a video link to its home jurisdiction.  Justice Cromwell wrote for a majority of seven and Justice Wagner wrote for a concurrence of two.

Source of the court’s jurisdiction

On the first issue, the Court determined that it is necessary to first consider the applicable statutory framework to determine whether the legislature has expressly granted jurisdiction. The inherent jurisdiction of the superior court is available only as a reserve or residual source of power, and it should only be invoked with caution.  The Court looked to section 12 of the Ontario and British Columbia Class Proceedings Acts, both of which empower a judge to make any order respecting the conduct of a class proceeding to ensure its fair and expeditious determination.

The Court considered that section 12 of the Ontario and British Columbia Class Proceedings Acts was sufficiently broad to permit a court to sit in another province or territory.  The Court further determined that there are no statutory, common law, or Constitutional barriers to such an exercise of the court’s discretion.  However, the Court cautioned that this holding was limited to the particular joint hearing under consideration, which was to proceed on a paper record, and which would not require the exercise of coercive powers.  Importantly, the Court suggested that the use of coercive powers in another province or territory may give impermissible extraterritorial effect to the underlying statutory jurisdiction.

The Court recognized that some jurisdictions may not have a statutory provision analogous to s. 12 of the Ontario and British Columbia Class Proceedings Acts. In these circumstances, the Court considered that the inherent jurisdiction of the superior court to control its processes would permit the approach set out above.  However, the Court noted that any such exercise of inherent jurisdiction would be subject to whatever limits had been imposed by statute or regulation.

Content of the open court principle

On the second issue, the Court disagreed with the Courts of Appeal for Ontario and British Columbia that a judge sitting in another province or territory was required to maintain a video link to a courtroom in his or her home jurisdiction. The majority noted that while “a superior court judge will likely find it preferable to use a video link in most situations”, “the court has the jurisdiction to sit outside its province separate and apart from the technological means it decides to use”.  The open court principle is satisfied because the courtroom is open and accessible, even if it is in another province or territory.

Justice Cromwell summarized the Court’s holding as follows:

In pan-national class action proceedings over which the superior court has subject-matter and personal jurisdiction, a judge of that court has the discretion to hold a hearing outside his or her territory in conjunction with other judges managing related class actions. This is provided that the judge will not have to resort to the court’s coercive powers in order to convene or conduct the hearing and the hearing is not contrary to the law of the place in which it will be held.” …

“In my opinion, and with great respect to the contrary view of the appellate courts, a video link between the out-of-province courtroom where the hearing takes place and a courtroom in the judge’s home province is not a condition for a judge to be able to sit outside his or her home province. Neither is it necessarily required by the open court principle.”

The Court also provided practical guidance to judges considering a hearing in another province or territory, citing the following considerations:

1) Any infringement of the sovereignty of the receiving jurisdiction;

2) The balance of benefits and costs, including:

(i) fairness to the parties;

(ii) the cost to the parties and the court;

(iii) the public’s interest in a hearing in the home jurisdiction; and

(iv) the willingness of the media in the receiving jurisdiction to act as surrogates for the public of the home jurisdiction; and

3) Any limits that should be imposed in the interest of justice, such as the requirement of a video link to the home jurisdiction. If requested, the judge should only refuse a video link with good reason.

Likely next steps

In view of the strong support for linked courtrooms from both the majority and the concurring opinion, we expect that joint hearings will continue to be conducted with a video link to a courtroom in the judge’s home province or territory. The importance of the Court’s holding is that the judge will not lose jurisdiction in the event that the link is lost or unavailable.  This follows from the fact that the court itself is sited in the receiving jurisdiction, rather than sited in the home jurisdiction with the remote participation of the judge.  As the jurisprudence develops, however, we expect that the courts’ willingness to use coercive powers in joint hearings will be tested and this latter approach of a remote appearance by the judge may prove useful.

[1] We served as counsel to seven provinces and three territories, all of which were respondents at the Supreme Court of Canada.

[2] Leave to appeal to the SCC granted, but appeal abandoned February 2016.

coercive powers extraterritorial hearing hearing outside judges' home province inherent jurisdiction joint hearing pan-Canadian proceedings remote appearance by the judge section 12 of Class Proceedings Act statutory framework video link



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