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In October 2016, the Supreme Court of Canada (“SCC”) released its decision in Endean v British Columbia, 2016 SCC 42, holding that superior court judges have the discretionary power to sit outside of their home jurisdictions, pursuant to section 12 of the Class Proceedings Act.

Endean was a class action commenced on behalf of individuals who were infected with Hepatitis C through the Canadian blood supply. Concurrent actions were certified by the courts in British Columbia, Ontario, and Quebec. The parties agreed to a Canada-wide settlement agreement. To streamline the process and facilitate consistency, class counsel proposed that the superior court judges in British Columbia, Ontario, and Quebec sit together and hear the same submissions, rather than conducting individual hearings within each jurisdiction. The defendant provinces opposed this proposal, taking the position that superior court judges did not have the jurisdiction to conduct hearings outside of their home provinces.

The SCC held that class proceedings legislation equips superior court judges with broad powers to provide class members with efficient and economic access to justice, including the discretionary ability to engage in hearings outside of their home jurisdiction. Further, if judges choose to engage in this process, a video-link between the home courtroom and the out-of-province courtroom is not a requirement, as had been suggested by the Ontario Court of Appeal.

The SCC held that judicial discretion to sit in another province must “be exercised in the interests of the administration of justice”, and set out three non-exhaustive factors for judges to consider:

  1. Whether sitting outside of his or her province will create any impermissible extraterritorial effects;
  2. The costs and benefits of the proposed out-of-province proceeding; and
  3. Whether any terms should be imposed, including conditions for the payment of costs and the presence or absence of a video-links.

With regards to video-links between provincial court-rooms, the SCC noted that a judge should not refuse a requested video-link absent “good reason”.

While this out-of-province power is discretionary, class action litigators are optimistic that this is a step towards achieving efficient and economic national class proceedings. Simplifying the process for Canada-wide settlements will directly benefit class members by reducing the costs and time associated with multi-jurisdictional litigation.

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