Angus McKinnon and Rebecca Case

SCC resolves multi-jurisdictional hearings debate

By Angus McKinnon

In concurrent decisions released today in Endean v. British Columbia and Parsons v. Ontario, indexed as Endean v British Columbia, 2016 SCC 42, the Supreme Court of Canada resolved under what authority and conditions a provincial Superior Court judge can maintain jurisdiction without being physically present in their home province in the context of a pan-Canadian class action settlement. The majority found that section 12 of Ontario’s Class Proceedings Act, 1992 and section 12 of British Columbia’s Class Proceedings Act (the “Class Proceedings Acts”) provide the necessary statutory authority to conduct a hearing outside the Court’s home province and that a video link to the home province is not a prerequisite to maintaining such jurisdiction.1

An earlier blog (Proceeding Concurrently in Multi-Jurisdictional Hearings: Form or Substance) provides some background to these and other cases in which the courts addressed issues surrounding multi-jurisdictional hearings in parallel class actions. The Endean and Parsons decisions arise from the national Hepatitis C class action settlement that provided for the Ontario, British Columbia and Quebec Superior Courts to maintain an ongoing supervisory role and that decisions would only take effect if they were materially identical. When class counsel proposed holding one collective hearing regarding a matter under the settlement agreement in Alberta, the Quebec, Ontario and British Columbia Attorneys General objected. Motions for directions were then brought in the each of the three provinces. All three motions judges agreed that class counsel’s proposal was permissible. Ontario and British Columbia appealed.2

The Ontario Court of Appeal concluded that the Ontario Superior Court judge would not lose jurisdiction by sitting outside his home province and that the basis to do so could be found in the court’s inherent jurisdiction. The Court also held that a video link to the home province was required.3 The British Columbia Court of Appeal reached the opposite conclusion, finding that the common law prohibited a Superior Court judge from sitting outside British Columbia. However, the court essentially found that jurisdiction could be maintained if a telephone, video conference or other communication medium connected the judge to a British Columbia court room where counsel, witnesses and the public could be present.

Justice Cromwell, writing for the majority in the Supreme Court, concluded that sections 12 of the Ontario and British Columbia Class Proceedings Acts provide the necessary statutory authority for a Superior Court judge to sit outside their home province where they have personal and subject-matter jurisdiction when dealing with a matter on a paper record that does not involve the court exercising coercive powers, e.g. directing a witness to appear, answer questions and making orders controlling behaviour during a hearing, and in circumstances where the hearing is not contrary to the law of the jurisdiction where the hearing is held.5 While in these circumstances he found that it was unnecessary to resort to the court’s inherent jurisdiction and that such resort should only be had sparingly,6 he noted his view that in jurisdictions without an equivalent to Ontario’s and British Columbia’s sections 12, absent a statutory limitation, inherent jurisdiction extends to permit the form of hearing in issue.7 Finally the Court held that a video link was not a prerequisite to maintaining jurisdiction8 although “a superior court judge will likely find it preferable to use a video link in most situations.”9

Justice Wagner, writing concurring reasons, focused on the open court principle, the educational and community aspects of court proceedings and the role of the media as a proxy for the public in instilling confidence in the judicial system.10 While there was no necessity for a video link in the circumstances before the Court, and while there should not be presumptive orders made for a video link, where a video link is requested members of the public, the media, or counsel then, subject to any countervailing considerations, such a request should generally be granted. Further, judges should be prepared to consider and provide a video link where it is appropriate even if one is not requested.11

In the class actions context, this decision is a further important step in providing guidance on streamlining the administration and procedure in national class actions. Both inside and outside of the class actions context, it is hoped that this case will be recognized as providing an important endorsement of the need for courts to respond to the realities of multi-jurisdictional litigation by taking a broad interpretation of the powers and authority of judges to control procedure. Technological changes and initiatives can improve access to justice and preserve public confidence in the administration of justice and should not be limited by technical or historical understandings.12 How to balance the concerns in trying to decide whether to sit outside of the judicial officer’s home province is addressed with a proposed framework that seeks to guide the exercise of discretion of a judicial officer.13 14 With the increasing use of joint court hearings, video conferenced witness testimony and commissioned evidence being taken in foreign jurisdictions this decision may provide a concrete starting point for Canadian courts to approach and evaluate increasingly available technology to find innovative ways to improve access to justice.

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1Endean v British Columbia, 2016 SCC 42 (“Endean”) at para 4

2Endean at paras 5-12

3Endean at para 14

4Endean at para 16

5Endean at para 58

6Endean at para 24

7Endean at para 62

8Endean at para 63

9Endean at para 64

10Endean at paras 83-97

11Endean at paras 99 and 101

12Endean at para 4

13See Endean at paras 72-76

14It is noted that the proposed framework arises from circumstances where no coercive powers were to be exercised and the Court specifically declined to comment on whether the analysis was limited to cases where no coercive powers will be exercised. Endean at para 78

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