Endean v. British Columbia, 2016 SCC 42 (Courts — Jurisdiction — Class actions)

On appeal from a judgment of the British Columbia Court of Appeal (2014 BCCA 61), setting aside a decision of Bauman C.J.B.C. (2013 BCSC 1074)

And on appeal and cross appeal from a judgment of the Ontario Court of Appeal (2015 ONCA 158), setting aside in part a decision of Winkler C.J.O. (2013 ONSC 3053).

The superior courts of British Columbia, Quebec and Ontario certified concurrent class action proceedings on behalf of individuals infected with hepatitis C by the Canadian blood supply between 1986 and 1990. The British Columbia and Quebec class actions included residents of those provinces, while the Ontario class action included all other persons in Canada. The parties reached a pan Canadian settlement agreement in 1999, which assigned a supervisory role to the British Columbia, Quebec and Ontario superior courts and provided that decisions of those courts only took effect if they were materially identical.

In 2012, class counsel filed motions before the supervisory judges relating to the settlement agreement and proposed that the motions be heard by the three judges sitting together in one location. British Columbia, Quebec and Ontario opposed the proposal on the basis that the judges did not have the jurisdiction to conduct hearings outside their home province. Motions for directions were brought in each jurisdiction to resolve the objection. All three motions judges concluded that it was permissible for the superior court judges to sit in a province other than their respective home province with their judicial counterparts to hear the settlement agreement motions. Only Ontario and British Columbia appealed. The Ontario Court of Appeal agreed with the motions judge that the basis for the power to conduct a hearing outside the province was the superior court’s inherent jurisdiction, but concluded that a video link was required between the out of province courtroom and an Ontario courtroom. The British Columbia Court of Appeal found that the common law prohibited superior court judges from sitting outside the province, but that it was permissible for a judge who was not physically present in the province to conduct a hearing taking place in the province by telephone, video conference or other communication medium.

The representative plaintiffs appeal to this Court and Ontario cross appeals. The parties now agree that the 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. However, there is no agreement concerning the source of this power and the conditions under which it may be exercised.

Held (9-0): The appeals should be allowed and the cross appeal should be dismissed.

Per McLachlin C.J. and Abella, Cromwell, Moldaver, Gascon, Côté and Brown JJ.:

In pan national class action proceedings over which the superior court has subject matter and personal jurisdiction, a judge of that court has the discretion to hold a hearing outside his or her territory in conjunction with other judges managing related class actions, provided that 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 place in which it will be held.

To determine the source of their discretionary power to sit outside their home jurisdiction, courts ought to look first to their statutory powers before considering their inherent jurisdiction. Given the broad and loosely defined nature of the inherent powers of superior courts, they should be exercised sparingly and with caution. In Ontario and British Columbia, superior court judges have the discretionary statutory power under s. 12 of the Ontario Class Proceedings Act, 1992 and s. 12 of the British Columbia Class Proceedings Act (the “Acts”) to sit outside their home provinces. A broad interpretation of these statutory powers, which confirms and reflects the inherent authority of judges to control procedure, helps to fulfil the purpose of class actions and to ensure that procedural innovations in aid of access to justice will not be stymied by unduly technical or time bound understandings of the scope of the class action judge’s authority. There are no constitutional, statutory or common law limitations that restrict the scope of the broad and general language of these provisions and that prevent a judge from sitting outside his or her province for the purposes in issue in these cases.

Section 12 of the Acts should be understood as both confirming and reflecting the inherent jurisdiction of the superior courts to govern their own processes. Thus, in common law jurisdictions where comparable provisions do not exist, the analysis of the courts’ inherent jurisdiction would lead to the same result, subject to any limitations on inherent jurisdiction there applicable, such as constraints imposed by the Constitution, by any statutory provisions or by common law rules. Absent some clear limitation, the inherent jurisdiction of the superior courts extends to permitting the court to hold the sort of hearing in issue here.

A video link between the out of province courtroom where the hearing takes place and a courtroom in the judge’s home province is not a condition for a judge to be able to sit outside his or her home province. Neither the Acts nor the inherent jurisdiction of the court imposes such a requirement. The open court principle is not violated when a superior court judge exercises his or her discretion to sit outside his or her home province without a video link to the home jurisdiction.

The court’s discretion to hold a hearing outside its territory must be exercised in the interests of the administration of justice. The court should also be guided by the following broad considerations: whether sitting in another province will impinge or could be seen as impinging on the sovereignty of that province; whether there are benefits or costs to the proposed out of province proceeding; and whether any terms should be imposed, such as conditions as to the payment of extraordinary costs or use of a video link to the court’s home jurisdiction.

Per Karakatsanis and Wagner JJ.:

There is agreement that the superior court judges in these cases have discretionary statutory authority under s. 12 of the Acts to sit outside of their home provinces, and that a video link is not mandatory in an extraprovincial hearing.

The open court principle encompasses more than a singular requirement that justice not be carried out in secrecy. It fosters public confidence in the court system and furthers public understanding of the administration of justice. In addition, the open court principle protects the media’s right to access courts and the circumstances necessary for the media to fulfil its role as a surrogate for the public. A judge sitting extraprovincially should be prepared to consider how to give effect to the educational and community centric aspects of the open court principle. In particular, courts should strive to make class actions procedure visible and understandable to class members and the community where the proceedings were initiated. While the court should not presumptively order that a video link back to the home provinces be set up where the court sits extraprovincially, members of the public, the media, or counsel can request that a video link or other means be used to enhance the accessibility of the hearing. If such a request is made, or the judge considers it appropriate, a video link or other means to enhance accessibility should be ordered, subject to any countervailing considerations.

Reasons for judgment by Cromwell J. (McLachlin C.J. and Abella, Moldaver, Gascon, Côté and Brown JJ.

Concurring reasons by Wagner J. (Karakatsanis J. concurring)

Neutral Citation: 2016 SCC 42

Docket Numbers: 35843, 36456