On October 20, 2016, the Supreme Court of Canada (SCC) ruled that a provincial superior court judge may sit outside his or her home province to hear motions without live evidence in national class actions proceedings in certain circumstances. In Endean v. British Columbia (Endean), the SCC also indicated that superior court judges must consider a variety of factors in determining whether to exercise their discretion to sit in an extraprovincial hearing, including the cost and convenience of the hearing, the effect on access to justice and whether it will be seen to impinge on the sovereignty of the jurisdiction where it will be held.
The Endean case stems from a C$1.1-billion settlement of six class actions commenced in British Columbia, Ontario and Quebec, which were brought on behalf of individuals infected with Hepatitis C by the Canadian blood supply between 1986 and 1990. The B.C. and Quebec actions concerned residents of those provinces, whereas the Ontario action concerned residents of all provinces and territories except B.C. and Quebec.
The pan-Canadian settlement agreement reached amongst all parties to the actions, which included the Government of Canada and all of the provinces and territories, assigned a supervisory role to the superior courts in B.C., Ontario and Quebec. The supervisory courts were given the power to make orders for the implementation and enforcement of the settlement agreement. However, an order would only take effect once all three courts issued materially identical orders. All provinces and territories other than B.C. and Quebec attorned to the jurisdiction of the Ontario courts.
The SCC’s decision in Endean arose following motions for directions heard in the B.C., Ontario and Quebec courts in respect of a proposal from class counsel to have the three supervisory judges sit together in a fourth province to adjudicate certain motions relating to the settlement. The motions in question did not require hearing of live testimony but only consideration of a paper record. The provinces of the supervisory courts opposed the proposal on jurisdictional grounds.
B.C. AND ONTARIO DECISIONS
The motions judges in all three provinces concluded that a superior court judge can conduct out-of-province hearings. Only the B.C. and Ontario decisions were appealed beyond the motion stage. Accordingly, the SCC did not consider whether the civil law permits Quebec judges to conduct hearings outside Quebec.
The B.C. and Ontario provincial appellate courts differed on their approach to the questions raised by the motions for directions. The B.C. Court of Appeal found that the common law prohibited judges from conducting hearings outside the province, but agreed that it was permissible for a judge who was not physically present in the province to conduct a hearing in a B.C. courtroom by telephone or video conference. At the Ontario Court of Appeal, the majority of the court agreed that a superior court can conduct an out-of-province hearing by virtue of its inherent jurisdiction, but a differently constituted majority concluded that a video link between the out-of-province courtroom and Ontario courtroom was required.
The SCC unanimously held that superior court judges from B.C. and Ontario have the discretionary power to hold an out-of-province hearing in a class action proceeding in certain limited circumstances. The SCC restricted its analysis to the circumstances before it in the Endean case, which concerned motions that required consideration of only a paper record.
In particular, the SCC held that an out-of-province hearing will be permissible when:
- The court has jurisdiction over the parties and the issues
- The judge will not have to resort to the court’s coercive powers in order to convene or conduct the hearing; and
- The hearing is not contrary to the law of the jurisdiction in which it will be held.
These restrictions demonstrate that a judge cannot, for example, summon a witness to attend an extraprovincial hearing or even compel a witness who is present to answer questions.
A video link to a courtroom in the judge’s home province is not a requirement for an extraprovincial hearing. However, the SCC indicated that a judge should consider the effects on “open justice” raised by the presence or absence of a video link. Accordingly, the SCC stated that absent good reason, a judge should order a video link when one is requested whether by a party, a member of the public or the media.
The SCC held that the discretionary power of B.C. and Ontario judges to hold extraprovincial hearings in class actions arises from the respective B.C. and Ontario Class Proceedings Act. Those Acts contain similar provisions that confer a broad discretionary power to make orders respecting the conduct of class proceedings. Further, the SCC stated that superior court judges from common law provinces other than B.C. and Ontario also have the power to hold extraprovincial hearings of the type at issue in Endean, unless local legislation prohibited it. Such power would arise either from a comparable class action statute in such other province or, failing that, from the inherent jurisdiction of a superior court to control its processes in the interests of justice.
GUIDANCE ON WHEN THE COURT WILL EXERCISE DISCRETION TO CONVENE AN EXTRAPROVINCIAL HEARING IN A CLASS ACTION
In its reasons, the SCC set out non-exhaustive guidance for superior court judges to consider when determining whether to convene a class action hearing outside the court’s home jurisdiction, including:
- Whether the out-of-province hearing will impinge (or be seen as impinging) on the sovereignty of the province where it is held.
- If the benefits of an out-of-province hearing outweigh the costs. The following factors may weigh into the analysis: “the length and cost of the out-of-province hearing compared to a hearing in the home province; whether the parties have agreed to travel out of the latter and whether the proposed location imposes undue burdens on the parties or the court; and whether there is a public interest in the hearing taking place in the home province or whether access to justice favours an out-of-province hearing, among others.”
- What terms, if any, should be imposed on the out-of-province hearing. The SCC stated, by way of example, that the judge may consider issues such as the payment of extraordinary costs incurred as a result of the extraprovincial hearing and whether a video link to the judge’s home jurisdiction is appropriate.
Endean is an important endorsement of a superior court’s ability to regulate its process and proceedings but also reflects the potentially significant limits on the power of a provincial court judge to sit in extraprovincial hearings. The SCC’s decision is supportive of the development of “procedural innovations in aid of access to justice” and may allow for a more streamlined approach to the coordination and management of multi-provincial class actions in appropriate circumstances. Further, given the SCC’s discussion of the inherent jurisdiction of a superior court to control its process, it seems possible that a superior court judge also may be able to consider holding extraprovincial hearings in non-class actions in an appropriate case.