In Endean v. British Columbia, the British Columbia Court of Appeal held that a B.C. judge has no jurisdiction to conduct a hearing that takes place outside of the territorial boundaries of the province. On its face, the Court of Appeal’s ruling in Endean is in direct conflict with parallel decisions that have been issued by the courts in Ontario and Québec regarding the jurisdiction of their judges.
In its ruling, the Court of Appeal did recognize that a B.C. judge has the discretion to sit outside the province with his or her counterparts from courts in other provinces, provided that the hearing is conducted through an open a B.C. courtroom and the judge and the parties are linked to the courtroom by video- or tele-conference. As a result, in practice, the Court’s ruling is unlikely to require a change in the existing practice for convening joint settlement approval hearings in multi-jurisdictional class actions. However, the Court’s decision potentially complicates ongoing efforts to improve the coordination and management of multi-jurisdictional class actions, particularly in contested cases. It remains to be seen whether this appellate conflict over a important question of territorial jurisdiction and national class action practice will need to be resolved by the Supreme Court of Canada.
The Endean decision arises out multi-jurisdictional class actions concerning the infection of persons with Hepatitis C through the Canadian blood supply. Courts in Ontario, British Columbia and Québec certified parallel class proceedings, which were settled in 1999. The settlement assigned a supervisory role to the superior courts of all three provinces. It also provided that all three courts were required to issue identical orders for any order to be effective.
In 2012, class counsel proposed that all three supervisory judges sit together in one location to hear submissions on parallel motions. The Attorneys General of Ontario, British Columbia and Québec all objected to the judges sitting outside the territorial boundaries of their province. Class counsel then sought directions from the courts in all three provinces.
Initially, class counsel succeeded in all three provinces. In Ontario, former Chief Justice Winkler held that an Ontario superior court judge may preside over a hearing that is conducted outside Ontario in circumstances where it promotes the interests of justice (see Parsons v. Canadian Red Cross Society). Chief Justice Bauman of the British Columbia Supreme Court and Chief Justice Rolland of the Québec Superior Court agreed in subsequent decisions.
Appeals were taken in British Columbia and Ontario, but not in Québec. On appeal, the B.C. Court of Appeal concluded that a B.C. judge cannot conduct hearings that take place outside the province, reasoning that this would constitute a major change to the common law that was for the legislature to make. However, the Court of Appeal also held that:
In the context of these proceedings, a judge of the British Columbia Supreme Court has the discretion to sit outside the province with his or her counterparts to hear concurrent applications under the Settlement Agreement. The hearing of the application in the British Columbia proceeding must be conducted in a British Columbia courtroom, although the judge may actually be present from a location outside of the province.
In the result, it would appear that there is no obstacle to all three judges sitting together in one location, either inside or outside British Columbia, provided that the B.C. public, parties and counsel can attend the hearing in a B.C. courtroom linked to the judges by tele- or video-conference.
Prior to 2010, settlement of multi-jurisdictional class actions were addressed either by serial approval hearings in each province or by joint hearings connected by tele- or video-conference. This ad hoc approach succeeded due to the creativity of counsel and consent of the parties. In response to the increasing number of multi-jurisdictional class actions, however, the Canadian Bar Association appointed the National Task Force on Class Actions to, among other things, develop a framework for addressing administrative issues in national and multi-jurisdictional class actions. One product of this initiative was the Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions, which addresses joint settlement approval hearings in multi-jurisdictional class actions.
To date, there have been only a handful of cases where joint settlement approval hearings have been conducted under the Protocol – for example, Mackie v. Toshiba, Pro-Sys Consultants Ltd. v. Infineon Technologies AG, and Osmun v. Cadbury Adams Canada Inc.. As explained by Chris Naudie (counsel in Pro-Sys and Cadbury Adams) and co-author Luciana Brasil, technological challenges and time zone differences are two of the challenges to joint hearings by video- or tele-conference under the Protocol – challenges that could be addressed by judges conducting joint hearings in one location in multi-jurisdictional class actions.
Although Endean does not go as far as Parsons or Hondon in approving this practice, it does not completely foreclose it either, provided the B.C. public, counsel and witnesses can observe or participate from British Columbia. It remains to be seen whether the parties will seek guidance from the Supreme Court – to date, no application for leave to appeal has been filed, according to the Supreme Court’s registry – and how the Task Force on Class Actions will address Endean as it explores means of improving coordination of multi-jurisdictional class actions.