Commercial Litigation and Dispute Resolution Blog

On November 13, 2015, I blogged about the Supreme Court of Canada granting leave to appeal in two related cases: Endean v. British Columbia, 2014 BCCA 61 and Parsons v. Ontario, 2015 ONCA 158.  These cases raised the issue of the scope of inter-jurisdictional coordination for national class actions in Canada by determining whether or not judges of provincial superior courts were able to sit outside their home jurisdiction when supervising a settlement of a national class action.

On October 20, 2016, the Supreme Court answered this question. In Endean v. British Columbia, 2016 SCC 42, the Court ruled unanimously as to result. Mr. Justice Cromwell, writing the majority reasons, ruled that that judges in Ontario and British Columbia

“...have the discretionary statutory power … to sit outside their home provinces, and a video link to an open courtroom in the judge’s home jurisdiction is not required” (see paragraph 4).

The Supreme Court has, as a result, removed a shadow that was cast over national class actions which required management in multiple Canadian jurisdictions.

The decision is interesting from a number of perspectives. The Court found the authority to conduct hearings outside of a judge’s home jurisdiction in the class action legislation in Ontario and British Columbia. It did not find it necessary to rely upon the inherent jurisdiction of provincial superior courts to control their own processes.  However, this finding by itself would have left a void in provinces or territories whose class action legislation differed from Ontario and British Columbia (or where there is no class action legislation). In order to fill this gap and not create a patchwork across the country, the Court found that the statutory provisions reflected and confirmed the inherent jurisdiction of provincial superior court. So judges of other provinces or territories are able to rely on that jurisdiction, if necessary due to the absence of express statutory authorization, to hold hearings outside of their home jurisdiction.

The Court also discussed the “Open Court” principle and ultimately found it did not require a video link to a home jurisdiction open court in every case. Rather, whether a video link is necessary was left to the discretion of the judge.

Finally, the Court wrote that in exercising the discretion to determine whether to hold a hearing outside the home jurisdiction, a judge should (1) weigh the benefits and costs of an out-of-province proceeding, including the issue of fairness to the parties, availability of the media and the interests of justice; and (2) consider whether terms, such as a video link, should be imposed to serve the interests of justice.

In the end, the Supreme Court has provided a principled and practical solution to allow the effective management and administration of national class actions.