By Joel Rochon and Suzanne Chiodo
On October 20, 2016, the Supreme Court of Canada released its decision in Endean v. BC, in which it held that class actions judges could, in certain circumstances, sit outside their jurisdiction. The decision opens the door to addressing the management of multi-jurisdictional class actions in Canada. Many issues regarding cross-provincial class actions remain, including the management of overlapping actions and carriage disputes which, as Vioxx and other class actions demonstrated, can lead to unnecessary delays in class proceedings and affect access to justice.
The Endean case involved individuals infected with Hepatitis C by the Canadian blood supply between 1986 and 1990, with class actions brought in BC, Québec and Ontario. A cross-Canada settlement was achieved in 1999. The BC, Québec and Ontario judges had a supervisory role over the settlement, but their orders would have to be substantially the same in order to have effect.
In 2012, class counsel brought motions before each of the judges, and proposed that these judges hear the motion together in Alberta. The Attorneys-General of the three provinces objected, stating that the judges did not have jurisdiction to conduct hearings outside their home provinces. The matter was heard by the Supreme Court of Canada in May 2016.
Justice Cromwell held that judges could convene hearings outside their jurisdictions provided that the hearing did not contravene the law of the place in which it was held. Justice Cromwell found that this power stemmed, first, from the statutory powers under section 12 of both the Ontario and the BC Class Proceedings Acts (which give courts a broad power to determine class actions procedure), and second, from the court's inherent jurisdiction. Courts outside of BC and Ontario would have similar powers.
Such an interpretation means that the access to justice goals of class proceedings "will not be stymied by unduly technical or time bound understandings of the scope of the class action judge's authority." The Court also held that a video link to the judge's home province was not required, either by the Class Proceedings Acts, by the courts' inherent jurisdiction, or by the open court principle (which requires that court proceedings be open to the public), provided the extra-provincial hearing was publicly accessible.
However, while the courts' powers were interpreted as being broad, they are not unlimited. In this case, the hearing in question was to be on a paper record. In rendering his decision, Justice Cromwell was not required to consider the procedures for in-person settlement approval hearing. Nor did Justice Cromwell specify whether sitting extra-provincially was permissible in cases where judges had to compel witnesses to appear or otherwise use their coercive powers.
That said, Endean provides a path forward for renewed judicial cooperation and streamlining in the context of national class actions. It is up to practitioners to explore ways to drive efficiencies. For example, panels of judges could be convened in select circumstances to manage cases across the country. As with the multi-district litigation system in the U.S., national class counsel and steering committees could also be chosen by the panel, or by a Judge designated by the panel, to eliminate lengthy and redundant carriage battles. Endean suggests that the Supreme Court may be open to such solutions which in turn would enhance access to justice across Canada and would lead to the more efficient resolution of disputes, all of which would certainly meet the Court's requirement of being in "the interests of the administration of justice".