CANADA – Concurrent class proceedings can raise procedural and substantive issues, chief among which is how to avoid conflicting judicial determinations from separate courts adjudicating on the same issue. When seeking approval from multiple courts of a global class action settlement, one approach may be to have the various courts preside over the same hearing.

A recent decision of the Supreme Court of Canada in Endean v. British Columbia, 2016 SCC 42 (“Endean“) held that judges of superior courts from different provinces may sit together to hear a motion arising out of concurrent class proceedings in their respective jurisdictions.

In Canada, superior courts are those with general rather than statutorily-granted jurisdiction. There is a separate superior court in each Canadian province.

The Endean decision arose from three concurrent class proceedings which had been commenced in the superior courts of Ontario, British Columbia and Quebec on behalf of individuals infected with Hepatitis C through the Canadian blood supply. It was common ground that each superior court had personal and subject-matter jurisdiction over the parties and issues in their respective proceedings.

All three actions were ultimately certified. The Ontario class included residents in every province except British Columbia and Quebec, meaning all affected Canadians were class members to one of the proceedings.

A “pan-Canadian settlement agreement” was reached with the representative plaintiffs of each action, the Federal government and every provincial and territorial government, subject to Court approval. The settlement agreement provided that it would only take effect if the settlement approval orders of all three superior courts were rendered “without any material differences.”

The plaintiffs proposed that the most efficient and effective procedure for adjudicating the concurrent motions would be to have them heard by the three superior court judges sitting together in one location. The judges would thus hear the same submissions and be best positioned to render orders without material differences.

At first instance, all three courts accepted the plaintiffs’ proposal and issued decisions to that effect. The decisions of the Ontario and British Columbia judges were both appealed. The Ontario Court of Appeal held that the Ontario court may sit outside the province, while the British Columbia Court of Appeal held that British Columbia courts may not sit outside the province.

Both appellate decisions were reviewed by the Supreme Court of Canada. A seven-judge majority of the Supreme Court held that that a superior court’s discretionary power to sit outside its home jurisdiction derives, first, from legislation and, second, from a superior court’s inherent jurisdiction to control its own procedures.

The legislative power is authority provided by the class proceedings statutes of Ontario and British Columbia, which allows the Court to make any order it considers appropriate with respect to the conduct of a class action to ensure its fair and expeditious determination.

The inherent jurisdiction refers to a residual power to be exercised whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

The Supreme Court cautioned that the authority to sit out of province should only be exercised in accordance with the due administration of justice. Judges should therefore consider: (1) whether sitting in another province will impinge or appear to impinge on the sovereignty of that province; (2) the associated costs and benefits, including financial expense, fairness to the public, and, crucially, effects on open courts and access to the media; and (3) whether terms should be imposed such as payments by the moving party of extraordinary costs.

Going forward, it is hoped that this approach will eventually extend beyond Canada’s borders and help to facilitate more efficient and consistent settlement approval procedures in the context of inter-jurisdictional class proceedings.


Brendan O'Grady is a senior associate with Baker McKenzie's North America Litigation & Government Enforcement Practice Group in Toronto. He advises on commercial litigation and arbitration proceedings.