Out-Of-Province Class Actions Go To The Supreme Court Of Canada

On November 5, 2015, the Supreme Court of Canada (the "SCC") granted leave to appeal in two related cases: Endean v. British Columbia, 2014 BCCA 61, and Parsons v. Ontario, 2015 ONCA 158. The resolution of these two cases will shape the scope of inter-jurisdictional coordination for national class actions in Canada by determining whether or not provincial judges may sit outside their own jurisdiction when supervising a settlement in a national class action.

These cases stem from multi-jurisdictional claims pertaining to individuals infected with Hepatitis C by the Canadian blood supply between 1986 and 1990. Separately, these claims were certified as class proceedings in the provinces of British Columbia, Ontario, and Quebec. In 1999 the class proceedings culminated with the signing of a national settlement agreement. The Supreme Court of British Columbia, the Superior Court of Justice for Ontario, and the Superior Court of Quebec were each assigned a supervisory role over the implementation and enforcement of this settlement agreement. Included in the settlement agreement is the condition that any court order issued by one of the aforementioned courts, would only take effect upon materially identical orders being issued by the other two courts.

Such a condition created problems with the coordination of the settlement agreement between the three jurisdictions. This was exemplified in 2012 when class counsel sought an extension to the time allotted for making a claim for compensation. To help facilitate this application, class counsel proposed a single hearing before the three supervisory judges at one location - the proposed location was Alberta, a neutral jurisdiction in this matter. Doing so would have avoided hearing separate motions in each of the three provinces. In response, the Attorneys Generals of the respective provinces objected to their judges sitting outside their territorial boundaries.

As a result, class counsel sought direction from the courts in all three of the provinces. In separate decisions, two of the three courts held that the inherent jurisdiction of the courts permitted judges to sit outside their territorial jurisdiction if the court had personal and subject matter jurisdiction over the parties and the issues to the proceeding.

The first court...