The Supreme Court of Canada has again endorsed class actions as “an important procedural tool designed to help improve access to justice”, and has expanded the procedural tools available to provincial superior courts to expeditiously manage class proceedings. In Endean v British Columbia, 2016 SCC 42 (“Endean“) the Court held that superior court judges may sit outside their home provinces, in certain instances, to facilitate the resolution of pan-national class action settlements. However, there appear to be limits to the extent of this discretion, and the broader implications of the decision to other procedural questions remains to be seen.

Background

Endean arose out of class proceedings on behalf of individuals infected with hepatitis C through the Canadian blood supply in the 1980s. Separate class actions were certified in British Columbia, Quebec and Ontario, with Ontario’s certification including residents of all provinces, other than British Columbia and Quebec.

In 1999, a pan-Canadian settlement was approved by courts in all three provinces. The settlement granted a supervisory role to the superior courts of each of the three provinces. However, decisions would only take effect if the orders of all three courts were “without any material differences”.

In 2012, class counsel sought to extend the deadline to file claims. Counsel proposed that the most efficient procedure for adjudicating the motion was to have all three superior court judges sit together in a fourth province. This would also ensure the orders were without material differences.

All three motion judges concluded they could sit outside their home jurisdictions. The British Columbia and Ontario decisions were appealed. The Ontario Court of Appeal concluded a judge could sit outside his or her home jurisdiction on the basis of the court’s inherent jurisdiction. The British Columbia Court of Appeal held that the common law prohibited extraterritorial sittings, but held that this could be overcome through a telephone or video-link with a British Columbia courtroom.

Decision

Writing for the majority in Endean, Cromwell J. held that class actions are important procedural tools designed to improve and facilitate access to justice. To further that end, he broadly interpreted a generally-worded provision of the class proceedings legislation in force in Ontario and British Columbia to authorize courts of those provinces to sit outside their home provinces in certain instances. A video-link to a courtroom in the home jurisdiction is not required, although the court will “likely find it preferable” to use a video-link in most situations.

Cromwell J. acknowledged a “deep-seated sense” in the common law that courts conduct their business within their geographical boundaries, but held that concerns regarding the sovereignty and dignity of foreign courts, as well as the “extraterritorial exercise of coercive powers”, did not arise on the facts of the case. No other common law, statutory or constitutional barriers to extra-provincial hearings arose on the specific facts of the case.

Cromwell J. went on to note that the statutory powers of the Ontario and British Columbia superior courts to hold extra-provincial hearings reflect the inherent authority of superior courts to control their own procedure. Accordingly, judges in common law provinces without an analogue to the specific provisions in the British Columbia and Ontario legislation could also sit outside their home province, based on their inherent jurisdiction.

Cromwell J. went on to provide a general framework to help superior courts determine whether it is appropriate to sit outside their home jurisdiction in a given case. Considerations include whether sitting in a foreign province will impinge on the sovereignty of that foreign jurisdiction, weighing the costs and benefits of an extra-provincial hearing, and whether any terms should be imposed on the hearing.

Wagner J. (Karakatsanis J. concurring) agreed with Cromwell J.’s conclusions, but placed special emphasis on the open court principle as it relates to video-links with a court’s home jurisdiction. Although Wagner J. agreed that a video-link is not required, he concluded that video-links should generally be used when requested by the public or media, subject to countervailing considerations.

Although the decision expands the ability of superior court judges to effectively manage pan-national class proceedings, the discretion to sit outside one’s home province is not absolute. Cromwell J. made clear that a number of considerations can operate to limit, and perhaps in some cases extinguish, the ability to sit extra-provincially.

First, the superior court must have subject-matter and personal jurisdiction before holding an extra-provincial hearing. Second, Cromwell J. noted that Endean did not require the judges to resort to their coercive powers (such as ordering witnesses to attend proceedings), as the proceeding was based off of a paper record in that case. In circumstances where the courts are required to exercise coercive powers, there is likely a strong argument that extra-provincial sittings are not allowed.

The ruling in Endean opens the door to the possibility of judges from multiple provinces convening a single hearing in an extraterritorial jurisdiction for the purposes of facilitating a class action settlement. With that said, it remains to be seen how far the Endean principle will ultimately extend, both in the context of the narrow issue of judges sitting extraterritorially, and more broadly in the interpretation and implementation of class actions legislation in other procedural contexts.