Introduction

A British Columbia superior court judge cannot preside at a hearing outside British Columbia. This was the decision of the British Columbia Court of Appeal in Endean v Canadian Red Cross Society.(1) The appeal court overturned the decision of Chief Justice Bauman of the British Columbia Supreme Court, which held that no constitutional principles or rules of law prevent a judge in British Columbia from sitting outside the province. Bauman's decision was based on the combination of a purported absence of contrary common law rules and an expansive view of inherent jurisdiction.(2)

The Endean decisions arose out of the implementation of the pan-Canadian class action settlement in the Canadian Red Cross Society hepatitis C tainted blood scandal, which gave rise to parallel class actions in British Columbia (Endean), Ontario (Parsons(3) and Quebec (Honhon).(4) Specifically, the issue was whether the class action supervisory judges of the superior courts of British Columbia, Ontario and Quebec could sit together in one location (where they would be gathered for a judicial conference) outside all their provinces to hear a common settlement implementation motion that had to be brought in all three class actions. The superior courts in British Columbia and Quebec had the benefit of the reasons in Parsons,which was decided first by Ontario Chief Justice Winkler (as he then was) sitting as the supervisory superior court judge, not as a single judge of the appeal court. Each of the lower courts concluded that a superior court judge could preside at a hearing outside his or her respective province.

Although the British Columbia Court of Appeal overturned the superior court, this is not the last pronouncement on the territorial jurisdiction of superior courts. The Ontario Court of Appeal heard the appeal in Parsons on September 16 2014 and that decision is under reserve. Further, leave to appeal the British Columbia Court of Appeal's decision to the Supreme Court of Canada was filed on April 22 2014.(5) The decision in Honhon was not appealed.

Litigation history

The litigants settled the class actions by way of a national settlement agreement dated June 5 1999, whereby the governments of Canada, all 10 provinces and all three territories agreed to be bound by its terms on the settlement agreement receiving court approval by the superior courts in each of the three provinces where the class actions were commenced. On approval in each of the three jurisdictions, the $1.118 billion fund established by the settlement agreement would be available to eligible claimants.

The settlement agreement was approved by the superior courts in each jurisdiction. A key term of the settlement agreement provided that any order made by a court will take effect only once there are materially identical orders of the other two courts.

A majority of the motions brought in each court have proceeded by way of consent. Each court heard the motions separately and independently of each other, and the orders issued by each court were without material differences. However, in 2012 a motion was brought in each jurisdiction by class counsel to approve a protocol to deal with certain categories of claim sought to be made after the first claims deadline. Pursuant to the settlement agreement, materially identical orders were required from each jurisdiction before the protocol could take effect. The attorney general of Canada and certain other provincial governments indicated that they intended to oppose the relief sought in the protocol motions.

Rather than the contested motion being heard three times in three different jurisdictions, class counsel proposed that the most efficient and effective procedure would be to have the supervisory judges of the superior courts of British Columbia, Ontario and Quebec sit together in one location so that the same submissions could be heard and each could be well placed to make concurrent orders without material differences, as required by the settlement agreement. Coincidentally, the three supervisory judges were scheduled to attend meetings in Edmonton, Alberta in September 2012 and the motions were made returnable during that period to be heard in Edmonton.

The attorneys general of British Columbia, Ontario and Quebec objected to the judges of their provinces sitting outside the territorial boundaries of their respective provinces. This jurisdictional question was important to resolve, as class counsel intended to bring future joint motions.

The superior courts in each province determined that, in the apparent absence of common law authority holding otherwise, the inherent jurisdiction of superior courts which permits them to control their own process also empowers them to hold a hearing outside their home province if it promotes the interests of justice in a particular case and the superior court has personal and subject-matter jurisdiction over the parties.

Issue

The fundamental question considered by the British Columbia Court of Appeal was whether a British Columbia superior court judge, regardless of the particular circumstances, can preside at a hearing outside British Columbia.

Appeal court decision

The British Columbia Court of Appeal paid particular attention to the reasons in Parsons which were adopted by the British Columbia Supreme Court at first instance in Endean (and by Chief Justice Rolland in Honhon). In bringing these motions, class counsel were driven by the convenience of having the three judges of the three jurisdictions in which the class actions were occurring sit together so that materially identical orders could be issued by each of the courts and, as per the settlement agreement, the orders could take effect.

During the Endean appeal a significant amount of time was devoted to this point.(6) However, the British Columbia Court of Appeal considered this point to be secondary. The issue was whether a British Columbia superior court judge can preside at a hearing outside British Columbia. In answering in the negative and overturning the lower court decision, the appeal court relied primarily on the common law to arrive at its decision.

Common law and territoriality

Despite the reasons and conclusions of the supervisory judges in Parsons, Endean and Honhon, the British Columbia Court of Appeal noted that there was no authority from any common law jurisdiction that provides that a judge of a court can hold hearings outside his or her territorial boundaries. Indeed, the authority that does exist is to the contrary.(7)

The British Columbia Law and Equity Act is the mechanism which imports English laws, as they existed on November 19 1858, into British Columbia.(8) As of November 19 1858, the English common law did not permit an English judge to sit outside his or her territorial boundary. As a result, when the English common law was received in British Columbia, it too prohibited a British Columbia judge from sitting outside his or her territory.(9) The common law has not changed in this regard and if the law were to change, the British Columbia Court of Appeal held that it would be within the purview of the legislature and not the courts.(10)

In Endean the British Columbia Court of Appeal noted that Justice Rowles in the earlier decision of Ewachniuk v Law Society of British Columbia considered the jurisdiction of superior courts. In this regard she held:

"Extraterritoriality is the projection of authority beyond the territory of a state. In Canada, the jurisdiction of the superior courts of the provinces is determined internally by the Constitution and externally by the boundaries of the provinces. While courts do project their authority beyond their boundaries through the exercise of in personam jurisdiction, domestic courts do not sit outside their boundaries."(11)

The British Columbia Court of Appeal acknowledged that the above comments were not necessary for Rowles's decision, but that did not mean that it was not an accurate statement of the law.(12)

At first instance Bauman held that there was no constitutional principle or rule of law that prevented a superior court judge of British Columbia from sitting with his or her counterparts in another province to hear motions under the settlement agreement.(13) The British Columbia Court of Appeal overturned Bauman's decision on the basis of this faulty premise. The appeal court's finding that Rowles accurately set out the law with respect to the jurisdiction of the superior courts of the provinces was fatal to Bauman's decision.

Inherent jurisdiction to be exercised in manner consistent with common law usage

The British Columbia Court of Appeal also considered the nature of inherent jurisdiction. To this end, it relied on Justice Karakatsanis's decision in R v Imona-Rusell, where the majority described the powers at the core of a superior court's jurisdiction as comprising "those powers which are essential to the administration of justice and the maintenance of the rule of law".(14) Ultimately, following established jurisprudence, the appeal court concluded that inherent jurisdiction cannot be exercised so as to conflict with a statute or rule; and because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case.(15) Inherent jurisdiction cannot be used as a basis to permit what the common law prohibits.

Open court principle and its relation to territorial jurisdiction

The British Columbia Court of Appeal further noted that allowing judges to sit outside their territorial jurisdiction endangers the open court principle. Under this principle, any member of the public interested in a hearing should be able to attend in a courtroom in British Columbia to observe the hearing. According to the appeal court, allowing a judge to conduct a hearing outside the province compromises the ability of the public and local media to monitor such proceedings.(16)

However, after describing the vital importance of the open court principle as a hallmark of democratic society and how this principle could be compromised by permitting a British Columbia judge to preside over a hearing outside the province, the British Columbia Court of Appeal held that it saw no reason why a judge, counsel or witnesses need be physically present in British Columbia, provided that the hearing itself takes place in a courtroom in British Columbia (although witnesses and counsel could not be compelled to attend outside the province). For example, the matter could be heard in British Columbia by telephone, video conference or other communication medium.(17) Such a hearing, according to the British Columbia Court of Appeal, would not offend the common law rule that prohibits judges from conducting hearings outside British Columbia; while the judge may be located elsewhere, the judge would be exercising his or her jurisdiction at a hearing taking place in British Columbia by way of some communication medium.(18)

Interestingly, the British Columbia Court of Appeal did not address whether a British Columbia judge physically present in Edmonton could determine the Endean motion if the motion was heard in British Columbia through some form of communication medium. If such proceeding does not offend the common law rule that prohibits judges from conducting hearings outside British Columbia, would the common law be offended if judges from British Columbia, Ontario and Quebec sat together in one location (Edmonton) to hear similar motions in the respective class actions in which they are presiding, provided that these motions are heard in those respective provinces by way of some communication medium?

Materially identical orders

An issue not considered by the British Columbia Court of Appeal, or by any other of the lower courts for that matter, was the impact on judicial independence of three judges from different jurisdictions sitting together to hear parallel motions simultaneously under the settlement sgreement. Judicial independence may be interfered with if one judge influences another, and this concern may be heightened if, as required under the settlement agreement, materially identical orders are required. There is a risk of a confused state of affairs if judges from three different jurisdictions sit together to hear three parallel motions simultaneously. How are litigants from one jurisdiction (eg, British Columbia) to interact with judges from Ontario and Quebec, who are sitting (but not presiding) with their British Columbia judicial counterpart? Having three judges sitting together, but not presiding over the same matter, may blur the lines of judicial independence. This would be especially true if the three judges were treated as a panel of judges (akin to a three-judge appellate bench).

The generally accepted core principle of judicial independence is the liberty of judges to hear and decide cases that come before them: "no outsider – be it government, pressure group, individual or even another judge – should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision."(19)

Judges from different jurisdictions sitting together pursuant to motions under the settlement agreement would not necessarily infringe a superior court's independence and sovereignty. Indeed, in Nortel Networks Corporation (Re) an order requiring a joint Ontario-Delaware trial under the court-approved allocation protocol was found not to offend the principle of judicial independence.(20)

Comment

As it stands, the British Columbia Court of Appeal held that judges cannot conduct hearings that take place outside the province and it is for the legislature to decide whether this should be permitted. However, the decision is not the last word on these constitutional and rule-of-law principles. The issue will be considered and decided by the Ontario Court of Appeal, whose decision in Parsons is under reserve. Further, the Supreme Court of Canada may ultimately weigh in as well if it decides to grant leave to appeal the British Columbia Court of Appeal decision. The resolution of this issue is of importance in both pan-Canadian and cross-border class actions and other cross-border litigation.

Barbara L Grossman

Rahim Punjani

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