Multijurisdictional class actions simultaneously prosecuted in various provinces are more and more common. In the matter of Endean v. British Columbia, 2016 SCC 42, the Supreme Court of Canada recognized that superior court justices handling such cases could sit outside their home provinces jointly with their counterparts from other provinces if in the best interests of justice.

The History of the Litigation

During the 90s, various class actions were brought in British Columbia, Quebec and Ontario on behalf of individuals infected with hepatitis C by the Canadian blood supply between 1986 and 1990. In 1999, a pan-Canadian settlement agreement was reached, which assigned a supervisory role to the court of each of these provinces for the implementation and resolution of any issue arising therefrom, if any.

In 2012, motions were filed before the supervisory judges of British Columbia, Quebec and Ontario in relation to the settlement agreement. It was then proposed that that the motions be heard at the same time by the three judges sitting together in one location.

The Attorney General of each of these provinces opposed the proposal on the basis that the judges did not have the jurisdiction to conduct hearings outside their home province. Each of the courts dismissed the opposition and concluded that was permissible for the superior court judges to sit in a province other than their respective home province with their judicial counterparts. The Ontario Court of Appeal confirmed this decision, while the Court of Appeal for British Columbia set it aside, not appeal having been brought in Quebec.

Before the Supreme Court of Canada, all parties agreed that superior court judges have a discretionary power to sit together outside their home provinces to hear a motion without oral evidence in the context of a pan‑Canadian settlement agreement. The source of this power and its conditions were however contentious.

The Decision of the Supreme Court of Canada

The Supreme Court of Canada recognized the subject matter and personal jurisdiction, as well as the discretionary power of a judge of a superior court to sit outside his or her home province with other judges being charged with the management of related multijurisdictional class actions, provided that it is not necessary to resort to the court’s coercive powers for the hearing to take place and that same is not contrary to the law of the province in which it is to take place.

A broad interpretation to class action legislation confirms and reflects the inherent authority of judges to control procedure, fulfil the purpose of class actions and favor access to justice, without being stymied by procedural technicalities. Such is also not contrary to the Constitution.

A key question, therefore, is whether there are any rules or principles of common, constitutional or statutory law that prevent a judge from sitting outside his or her province for the purposes in issue here. In my view, there are none. [...] But absent some clear limitation, my view is that the inherent jurisdiction of the superior courts extends to permitting the court to hold the sort of hearing in issue here.

According to the court, permitting such hearings is not giving rise to concerns about sovereignty, dignity of the courts or extraterritorial exercise of coercive powers. It is a practical solution that fosters the objective of a class action.

Also, such a hearing does not require setting up a video link between the out-of-province courtroom where the hearing takes place and a courtroom in the judge’s home province. The absence of such link is not infringing the open court principle, being understood that the media and the public can attend the hearing where it is taking place. Nonetheless, the judge could refuse that a video link be set up only for a good reason.

The discretionary power of a judge of a superior court can only be exercised in the best interests of justice. The following elements are to be considered in that regard:

a) Is sitting in another province could impinging on the sovereignty of that province or create impermissible extraterritorial effects?

b) Is a hearing outside the province beneficial, having regard to its costs, the nature of the proceeding, the fairness to the parties, the ability and willingness of the media and public to attend and the broader interests of the administration of justice?

c) What conditions should be imposed to ensure that the interests of justice are best served by an out-of-province hearing?

The court also emphasized that other factors may apply depending of the circumstances of the cases and that other issues may arise in relation to the exercise of this discretionary power.

In a concurring opinion to that of the majority, Justices Karakatsanis and Wagner affirmed, with regard to the open court principle, the importance of giving effect to educational of a public hearing, notably to ensure that class actions procedure remains visible and understandable to class members and the community.

Conclusion

The decision in Endean v. British Columbia supports the need for the courts and parties to implement greater ressources to meet the ends of justice in class proceedings and, whenever required, to simply process in multijurisdictional class actions, where often the same issues seeking the same purpose are successively repeated in various jurisdictions.

As a joint hearing with numerous judges from as many provinces is typically required for the approval of a multijurisdictional settlement agreement, the courts and the parties should exercise great care and ensure that the rights of the class members are acknowledged and can easily be exercised to avoid causes to challenge the validity of a settlement agreement or the conclusions of a judgment approving it if they were not provided with a real and meaningful opportunity to be heard.

Otherwise, the prospect of resolving any issue in multijurisdictional class actions at once can only benefits the parties and the justice system as a whole.