On October 20, 2016, the Supreme Court of Canada released its decision in Endean v. British Columbia.1 The decision supports the advance of multijurisdictional national class proceedings, but questions remain as to the extent to which such proceedings can be efficiently managed and adjudicated prior to settlement.
The central question in Endean was whether judges can hear motions in a different province. The issue arose in the context of the 1999 national settlement of three concurrent class actions advanced on behalf of those infected with Hepatitis C through the Canadian blood supply. The settlement agreement assigned an independent supervisory role to the courts of British Columbia, Ontario and Québec; however, any court order will only be effective if the orders of the other two courts are materially identical. As the implementation of the settlement progressed, three separate motions were brought each time an issue needed to be determined in accordance with the settlement agreement.
In 2012, class counsel brought three separate motions to approve a protocol that would extend the deadline for filing claims under the settlement, and proposed that the motions be heard by the three supervisory judges sitting together in one location. The provinces opposed the proposal, and motions for directions were brought with respect to whether the supervisory judges could sit outside their home provinces to hear motions under the settlement agreement.
The Ontario, British Columbia and Québec Superior Courts determined that judges of those courts have jurisdiction to sit outside their home provinces in order to hear motions in these circumstances. The Attorneys General of Ontario and British Columbia appealed the decisions in those provinces. While the reasons of the appellate courts differed, the result in each case was that, while the judges could sit outside their home provinces, a video link was required between the extra-provincial courtroom and the home province. Class counsel appealed to the Supreme Court of Canada; the two appeals were heard together.
Jurisdiction to Sit Extra-Provincially
Justice Cromwell (for the majority of the Court, the minority concurring) held that section 12 of the Ontario and British Columbia class proceedings statutes granted the judges of those provinces broad discretionary powers to manage the proceedings, including the power to sit outside their home province if necessary to ensure the fair and expeditious determination of the case. The Class Proceedings Acts are to be interpreted broadly, in accordance with their purpose of enhancing access to justice.2
The broad interpretation of class actions statutes and judicial powers thereunder are not unlimited; the reach of the Court's statutory discretion is limited by any contrary common law, statutory and constitutional principles.3 Therefore, while a provincial court judge has the discretion to sit outside his or her home province in a pan-national class proceeding, the discretion is best suited to a hearing without oral evidence (though the Court declined to expressly address whether a judge sitting extra-provincially would be able to exercise any coercive powers)4 and the hearing must not contravene the law of the place of the hearing.5
The Court also concluded that the discretionary power to sit extra-provincially is not restricted to judges in provinces with statutory provisions similar to the Ontario and British Columbia Class Proceedings Acts. The type of hearing proposed by class counsel could be convened pursuant to the Court's inherent jurisdiction to regulate its process and proceedings, subject to the restrictions described above.6
No Video Link Required
The broad discretion to sit outside a judge's home province (where necessary) is not fettered by any requirement to establish a connection to the home province, whether by video link or otherwise. An extra-provincial hearing does not violate the open court principle; the fundamental precepts of that rule have no bearing on whether the hearing is held within the boundaries of the judge's home province.7
Framework for the Exercise of Judicial Discretion
The parties agreed that, if the judges of Ontario and British Columbia had the jurisdiction to sit outside their home province, it was appropriate for them to do so in the circumstances of the case. However, the Court provided some suggestions as to factors to be considered in assessing the exercise of discretion to sit extra-provincially, as follows:
a) the judge must have subject-matter and personal jurisdiction over the matter;
b) the judge should consider whether the decision will impinge or be seen as impinging on the sovereignty of the proposed hearing location, create impermissible extraterritorial effects in that province or prevent the court from competently presiding over the hearing;
c) the judge should conduct a cost/benefit analysis which includes consideration of the nature of the proceeding, fairness to the parties, coverage by the media of the home province, and the broader interests of the administration of justice (e.g., time, costs, the public interest in the location of the hearing and access to justice); and
d) the judge should consider whether any terms should be imposed, including with respect to extraordinary costs and whether a video link to the home province is required. On the question of the video link, Justices Wagner and Karakatsanis held (in concurring reasons) that, if a request for a video link is made, it should generally be granted.8
The Endean decision confirms the long-held principle that class proceedings statutes are remedial and should be interpreted broadly, in accordance with the objective of enhancing access to justice. It also provides support for the advance of efficient national class proceedings and coordination of concurrent claims. However, whether the decision will significantly affect the landscape of class actions in Canada remains to be seen. The framework provided by the Supreme Court is best-suited to the settlement context. The scope of national class actions will likely continue to develop as questions relating to the efficient adjudication of proposed national class proceedings arise in carriage, certification and settlement approval hearings.
1 2016 SCC 42.
2Ibid. at paras. 25-39.
3Ibid. at para. 40.
4Ibid. at para. 78.
5Ibid. at paras. 45-58.
6Ibid. at paras. 59-62.
7Ibid. at paras. 63-70.
8Ibid. at para. 101.