The Supreme Court of Canada has granted leave to appeal Endean v British Columbia, 2014 BCCA 61 and Parsons v Ontario, 2015 ONCA 158 on the issue of process and procedure in national/multi-jurisdictional class actions.
These cases involved a class action against the Canadian Red Cross Society and the federal, provincial, and territorial governments in relation to the distribution of tainted blood. The result of the class action was a pan-Canadian settlement agreement amongst the parties. The superior courts in Ontario, British Columbia, and Quebec were assigned a supervisory role under the terms of the settlement agreement. In 2012, class action counsel brought a motion for directions in all three provinces to determine whether supervising judges could sit together to hear a motion in Alberta. The Attorney Generals of each province opposed on the basis that judges cannot sit outside the territorial boundaries of their province. The motions judges in all three provinces found in favour of class counsel.
While the Ontario appellate court in Parsons found that a judge had authority to sit with other supervising judges outside the province of Ontario, the Endean case reached the opposite conclusion, finding that the common law prohibits domestic courts from holding hearings outside of their territorial boundaries.
In granting leave, the Supreme Court of Canada is now taking the opportunity to clarify the law with respect to the legality, and practicality, of the procedural issues which arise in the context of multi-jurisdictional class actions. This will undoubtedly be a case to watch as the highest court in Canada grapples with the important role of the courts in presiding over, and managing, national class actions.