October 20, 2016
Endean v British Columbia 2016 SCC 42

The superior courts of British Columbia, Quebec and Ontario certified concurrent class action proceedings on behalf of individuals infected with hepatitis C by the Canadian blood supply between 1986 and 1990. The British Columbia and Quebec class actions included residents of those provinces, while the Ontario class action included all other persons in Canada. The parties reached a pan‑Canadian settlement agreement in 1999, which assigned a supervisory role to the British Columbia, Quebec and Ontario superior courts and provided that decisions of those courts only took effect if they were materially identical.

In 2012, class counsel filed motions before the supervisory judges relating to the settlement agreement and proposed that the motions be heard by the three judges sitting together in one location. British Columbia, Quebec and Ontario opposed the proposal on the basis that the judges did not have the jurisdiction to conduct hearings outside their home province. Motions for directions were brought in each jurisdiction to resolve the objection. All three motions judges concluded that it was permissible for the superior court judges to sit in a province other than their respective home province with their judicial counterparts to hear the settlement agreement motions. Only Ontario and British Columbia appealed. The Ontario Court of Appeal agreed with the motions judge that the basis for the power to conduct a hearing outside the province was the superior court’s inherent jurisdiction, but concluded that a video link was required between the out‑of‑province courtroom and an Ontario courtroom. The British Columbia Court of Appeal found that the common law prohibited superior court judges from sitting outside the province, but that it was permissible for a judge who was not physically present in the province to conduct a hearing taking place in the province by telephone, video conference or other communication medium.

A majority of this Court held that in pan‑national class action proceedings over which the superior court has subject‑matter and personal jurisdiction, a judge of that court has the discretion to hold a hearing outside his or her territory in conjunction with other judges managing related class actions, provided that the judge will not have to resort to the court’s coercive powers in order to convene or conduct the hearing and the hearing is not contrary to the law of the place in which it will be held.

To determine the source of their discretionary power to sit outside their home jurisdiction, courts ought to look first to their statutory powers before considering their inherent jurisdiction. Given the broad and loosely defined nature of the inherent powers of superior courts, they should be exercised sparingly and with caution. In Ontario and British Columbia, superior court judges have the discretionary statutory power under s. 12 of the Ontario Class Proceedings Act, 1992 and s. 12 of the British Columbia Class Proceedings Act (the “Acts”) to sit outside their home provinces. A broad interpretation of these statutory powers, which confirms and reflects the inherent authority of judges to control procedure, helps to fulfill the purpose of class actions and to ensure that procedural innovations in aid of access to justice will not be stymied by unduly technical or time‑bound understandings of the scope of the class action judge’s authority. There are no constitutional, statutory or common law limitations that restrict the scope of the broad and general language of these provisions and that prevent a judge from sitting outside his or her province for the purposes in issue in these cases.

Section 12 of the Acts should be understood as both confirming and reflecting the inherent jurisdiction of the superior courts to govern their own processes. Thus, in common law jurisdictions where comparable provisions do not exist, the analysis of the courts’ inherent jurisdiction would lead to the same result, subject to any limitations on inherent jurisdiction there applicable, such as constraints imposed by the Constitution, by any statutory provisions or by common law rules. Absent some clear limitation, the inherent jurisdiction of the superior courts extends to permitting the court to hold the sort of hearing in issue here.

A video link between the out‑of‑province courtroom where the hearing takes place and a courtroom in the judge’s home province is not a condition for a judge to be able to sit outside his or her home province. Neither the Acts nor the inherent jurisdiction of the court imposes such a requirement. The open court principle is not violated when a superior court judge exercises his or her discretion to sit outside his or her home province without a video link to the home jurisdiction.

The court’s discretion to hold a hearing outside its territory must be exercised in the interests of the administration of justice. The court should also be guided by the following broad considerations: whether sitting in another province will impinge or could be seen as impinging on the sovereignty of that province; whether there are benefits or costs to the proposed out‑of‑province proceeding; and whether any terms should be imposed, such as conditions as to the payment of extraordinary costs or use of a video link to the court’s home jurisdiction.

The minority opinion, written by Wagner J., while agreeing with the majority’s finding that no video link was necessary given the facts of the case, strongly reiterated the important role of the media and the open court principle, and concluded that “If such a request [for a video link of an extraprovincial hearing] is made and subject to any countervailing considerations, such a request should generally be granted.”