In a recent decision1 that will facilitate proceedings and the settlement process in national class actions, the Supreme Court of Canada ruled that superior court judges can sit outside their home provinces.

The ruling, Endean v. British Columbia, is an appeal from two judgments from the Ontario2 and British Columbia3 courts of appeal arising from related class actions.

As part of the 1999 settlement of the tainted blood class action, the parties agreed to give a supervisory role to superior court judges in Ontario, British Columbia and Quebec. It was agreed that their decisions would take effect only if they were materially identical.

To extend the deadline for filing first claims for benefits from the settlement funds, class counsel filed contested motions in 2012 in all three provinces to approve the protocol. They proposed having the three supervisory judges sit together in Edmonton to facilitate the process, which the provinces opposed.

Motions for direction were brought on the jurisdictional issue.

In B.C., the Court of Appeal held that a judge not physically in the province may conduct a hearing taking place in the province via telephone, videoconference or other medium. In Ontario, the Court of Appeal found that there must be a video conference link to an Ontario courtroom for such a hearing. The Quebec Superior Court established that there are no constitutional or statutory principles that would preclude a Quebec judge from siting outside the province. This last decision was not appealed.

On the Ontario and B.C appeals, the Supreme Court of Canada found that provincial statutes governing class actions in both cases conferred authority upon Ontario and B.C. judges to sit outside of their respective home jurisdictions.

What’s more, these provisions should broadly be interpreted with an eye on ensuring improved access to justice. For provinces where there are no such provisions, the court ruled that the inherent jurisdiction of the judges confers the same authority, though it noted that the judges who preside over hearings outside of their provinces do not have any authority to use their coercive powers. It also found that there are no rules or principles of common, constitutional or statutory law that prevent judges from sitting in another province.

Requirement for a video link

The Supreme Court also held that the open court principle does not require a video link to an open courtroom in a judge's home jurisdiction. However, three broad considerations should guide a court exercising its discretion:

  • The impact on the province’s sovereignty of the province;
  • The benefits and costs of the proposed out-of-province proceeding; and
  • And whether any conditions (such as costs or use of a video link) ought to be imposed.

Two of the justices, Karakatsanis and Wagner, added that the open court principle "includes an educational aspect and increased public confidence in the integrity of court processes". Hence, the requirement for a video link will depend on the circumstances of the case. Requests for link by the public, members of the media or counsel should generally be granted.

The impact on class actions

It is now established that Superior Court judges can preside over a hearing outside of their home provinces in class actions initiated in their provinces. This should make it easier and less time-consuming to manage proceedings and settlements in multi-jurisdictional class actions. Having said that, while the decision favours lifts some jurisdictional restrictions, judges are still not allowed to exercise coercive powers outside of their home provinces. The practical implications remain to be seen.

The authors wish to thank Daniel-Nicolas El Khoury, Marketing Intern, for his contribution.