Further to our previous bulletins,1 the Supreme Court of Canada has released its decision in Endean v British Columbia,2 confirming that superior court judges have the discretion to hold hearings outside their home provinces in pan-national class a ction proceedings pursuant to their statutory powers and inherent jurisdiction.
Divergence in the courts of appeal
This decision brought needed resolution to two divergent decisions from the Ontario Court of Appeal in Parsons v The Canadian Red Cross Society3 and the British Columbia Court of Appeal in Endean v Canadian Red Cross Society.4 The underlying case concerned three concurrent class action proceedings initiated in British Columbia, Quebec and Ontario on behalf of individuals who contracted hepatitis C as a result of a tainted Canadian blood supply between January 1, 1986, and July 1, 1990. In connection with the settlement of the action, the parties sought guidance from the courts on whether or not supervisory judges from each of British Columbia, Quebec and Ontario could sit concurrently and extra-provincially to approve a protocol under the settlement.
In Parsons, the Ontario Court of Appeal held that the inherent jurisdiction of superior court judges allows them to sit outside their home provinces to hear motions decided on a paper record without witnesses testifying in person, provided that a video link is provided to a courtroom in their home province. The British Columbia Court of Appeal disagreed in Endean, finding that superior court judges could not sit extra-provincially as this would be contrary to the common law.
Clarification by the Supreme Court of Canada
The Supreme Court largely upheld the holding of the Ontario courts, with the proviso that a video link is not mandatory to maintain the open court principle. Superior court judges in Ontario and British Columbia have the statutory discretion to sit extra-provincially in class actions pursuant to their broad authority to manage the conduct of class proceedings under section 12 of the Class Proceedings Act, 1992 (Ontario) and section 12 of the Class Proceedings Act (British Columbia), while judges in other jurisdictions can rely on their inherent jurisdiction as superior court judges. Further, the majority determined that a video link to the home jurisdiction is not a condition to exercising this discretion because the open court principle does not require hearings be open specifically to the public physically present in the judge’s home jurisdiction.
While this decision highlights the broad power judges have in national class actions to determine procedure to facilitate fair and expeditious decision making, this power is subject to clear limits. The decision pertains to litigation taking place wholly within Canada and the Supreme Court declined to opine on whether a judge may only exercise his or her discretion to sit extra-provincially when not using coercive powers. Further, this discretion is only available when a court has personal and subject-matter jurisdiction over the matters at issue.
In all, this decision highlights the powers that judges have to permit them to keep pace with the growing demands of complex pan-Canadian class actions as our courts continue to seek out the pathways to fair and expedient decision making.
2 2016 SCC 42.
3 2015 ONCA 158 [Parsons]
(New frontiers for Canadian judges).
4 2014 BCCA 61 [Endean].
Pathways to net-zero 2050
If COP25, 2019 were to be summarized in a word, it would be ‘pathways’ – shorthand for the social, economic and technological choices that must be made in the near term in order to avoid catastrophic climate change.