Canada: Directors fiduciary duty in a pandemic: You need a protocol!
COVID-19 has had and will continue to have impacts on virtually every corporation in Canada and globally.
The Supreme Court of Canada has granted leave to appeal from two appellate decisions dealing with the issue of whether a judge from one province may sit with judges from other provinces to hear argument on a motion or application in a multi-jurisdictional Canadian class action. Both appeals arise from proceedings following a pan-Canadian settlement in the three class actions against the Canadian Red Cross Society brought by patients infected with hepatitis C through tainted blood.
In our update earlier this year on the Ontario Court of Appeal’s decision on this issue, Parsons v Canadian Red Cross Society,1 we reviewed the court’s finding that Ontario Superior Court of Justice judges may sit in another province with judges from other provinces as long as there is a video link to a public courtroom in Ontario.
The Supreme Court has granted leave to appeal this decision and indicated the matter will be heard concurrently with an appeal of a decision rendered by the British Columbia Court of Appeal on the same issue.
The second appeal is from the unanimous British Columbia Court of Appeal decision in Endean v Canadian Red Cross Society2 in which the court found that while a judge might preside over a hearing from outside British Columbia (by telephone or video conference, for example), the hearing itself must take place in a BC courtroom.
This finding seems inconsistent with the Ontario Court of Appeal’s conclusion that an Ontario judge might preside and the hearing might occur out of province, provided there is no impediment to access by Ontarians to the proceedings from a court within provincial borders.
The third of the class actions, which were separately certified in each province, was brought in Quebec. The Quebec decision3 authorizing its judges to sit outside the province has not been appealed.
The granting of leave to appeal by the Supreme Court indicates the court views this issue as a matter of national importance. In the class action context, the Supreme Court’s direction on these issues will provide much-needed clarity regarding the procedures available for dealing with multi-jurisdictional class actions, including any procedural steps that may be taken simultaneously in the courts of multiple provinces.
1 2015 ONCA 158.
2 2014 BCCA 61.
3 Honhon c Canada (Procureur général), 2013 QCCS 2782.
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