National Class Actions and Judges Sitting Extra-Provincial Proceedings: Endean v British Columbia

Introduction and Background

In most Canadian jurisdictions, a class action cannot proceed without a certification. The story of  Endean v British Columbia, 2016 SCC 42 [Endean] begins with the superior courts of British Columbia, Ontario, and Quebec certifying concurrent class actions on behalf of persons infected with Hepatitis C through the Canadian blood supply. These infections occurred between the years of 1986 and 1990 across the three provinces. The parties reached a national settlement agreement in 1999. This agreement assigned a supervisory role for all three superior courts. However, it also dictated that any single decision could only take effect where it was materially identical to the others.

How the Story Unfolds

During this settlement process, every time there was an issue, three separate motions were brought forward. In 2012, counsel for the class action filed a motion before the three courts and asked to have the motion heard by three judges sitting together in one location. Each province was against this proposal, as they believed that they only had jurisdiction to conduct hearings within their home province. The question remained: Can judges hear motions in a province other than their own? Motions for direction were brought to answer this question.

The superior courts in all three provinces were of the opinion that judges have the power to sit outside their home province to hear motions if the circumstance calls for it. The Ontario and British Columbia Attorney Generals both appealed this decision. This is because the courts of appeal in both provinces maintained that for judges to have jurisdiction in these out-of-province cases, a video link (in the Ontario court’s perspective) or more generally, some medium of communication (in the British Columbia court’s perspective) is required between courtrooms at home and at the out-of-province location. This decision was appealed by counsel for the class action.

At the Supreme Court, it was held that section 12 of Ontario’s Class Proceedings Act, 1992, SO 1992, c 6, and British Columbia’s equivalent legislation, allows for judges to sit in proceedings outside their home provinces. Section 12 states:

The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate. [Emphasis added]

The court noted that the judge must not have to resort to the court’s coercive powers in order to convene or conduct the hearing. I assert that this broad interpretation of section 12 is in accordance with enhancing access to justice, as will be further discussed below.

The Supreme Court also made a few notes:

• A video link or other form of communication is not required between the home province and the external province;
• Judges’s discretionary power to sit in hearings outside of their own province is not pursuant to just class proceeding statues, but by the inherent jurisdiction that courts have to regulate their proceedings. This discretionary power “empowers a superior court to regulate its proceedings in a way that secures convenience, expeditiousness and efficiency in the administration of justice” (Endean, para 60).
• The hearing procedures cannot contradict the law of the place in which it will be held.

Implications and A Look into the Future

We often hear criticisms relating to the lack of access to justice in our legal system. These barriers can relate to a victim’s inability to afford accessing the system through court and lawyer fees, the inconvenience of long waits and delays, or procedural hiccups that hinder access to the system. The barriers are wide-ranging, overlapping, and sometimes complex. For example,, working to ensure efficiency can, in some cases, decrease access to justice (see an old post for The Court addressing this tension).

Fortunately, this case seems to be moving things in the right direction. The need for fluidity in a judge’s competence is dire, as without it, cases like these would take a great deal of resources and time to get through each province individually. Without the flexibility allowed by the Supreme Court’s decision in Endean, each province would have to hear each motion separately before coming to a conclusion. Thus, this case serves as a landmark for class action proceedings across Canada, as Cromwell J. put it so eloquently in his opening remarks:

Class actions are an important procedural tool designed to help improve access to justice. They are meant to provide a fair and expeditious resolution of the plaintiffs’ claims and, to ensure that they do, class action judges have broad and flexible procedural powers (Endean, para 1).

Judgments like these are great but where should the courts and legislature go from here? It will be interesting to see whether Endean will inspire federal legislation or regulations to help manage and adjudicate class action lawsuits across the country. The constant dialogue and means of communication between the courts and Parliament must stay open and ensure access to justice is a priority for the betterment of the legal system as a whole.