The Supreme Court of Canada has provided direction in multidisciplinary class action proceedings, affirming that, in collaborating and co-ordinating such proceedings across multiple jurisdictions, the courts have broad and flexible powers through provincial class action statutes and the inherent jurisdiction of the court.
The SCC rendered its decision today in two companion class action proceedings brought on behalf of individuals affected by the “tainted blood” tragedy of three decades ago.
“This judgment is a breath of fresh air,” says Paul Pape of Pape Barristers PC in Toronto, counsel for Dianna Louise Parsons (deceased), the representative plaintiff in Ontario and several other jurisdictions across Canada. “The SCC has fully embraced class proceedings as a procedural tool to enhance access to justice, without any equivocation at all. It’s important for the country and the administration of class proceedings.”
Endean v. British Columbia and Parsons v. Ontario were class actions on behalf of individuals infected by the Canadian blood supply with hepatitis C between 1986 and 1990. A pan-Canadian settlement agreement was reached in 1999, which assigned a supervisory role to the British Columbia, Quebec and Ontario superior courts.
In 2012, class counsel filed motions before the supervisory judges relating to the settlement agreement, but British Columbia, Quebec and Ontario opposed the proposal on the basis that the judges didn’t have jurisdiction to conduct hearings outside their home province. However, motion judges in each of the three jurisdictions agreed that superior court justices could sit in another province with their judicial counterparts to hear the settlement agreement motions.
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 it concluded that a video link was required between the out-of-province and Ontario courtrooms. The British Columbia Court of Appeal found that common law prohibited superior court judges from sitting outside the province at all.
The Supreme Court judgment, written by Justice Thomas Cromwell, who retired in September, allowed the representative plaintiffs’ appeal and dismissed Ontario’s cross-appeal.
Pape and Harvey Strosberg of Sutts Strosberg LLP in Windsor, Ont., who is another counsel for the Parsons class, hail the SCC’s judgment as a vindication of the 2013 decision of Ontario motion judge Warren Winkler, then sitting as a judge of the Superior Court of Justice.
“This is considered to be a contentious decision; the Supreme Court of Canada has vindicated him entirely,” says Pape.
Strosberg also noted the SCC’s rejection of the necessity of the video link to connect courtrooms in different jurisdictions and the dismissal of the common-law argument. “In England, in 1858, when B.C. was incorporated . . . the common law prohibited judges in England from sitting outside of England,” says Strosberg. In this decision, the SCC justices have said “maybe it was good in 1858, but not today. Common law has changed.”
Sharon Matthews of Camp Fiorante Matthews Mogerman LLP in Vancouver is counsel for Anita Endean, the representative plaintiff in British Columbia. She also sits on the Canadian Bar Association’s National Class Action Task Force, which is looking at multijurisdictional class actions.
“The SCC has interpreted s. 12 in most of the common-law statutes [for class-action proceedings] as giving very broad and flexible powers to the courts,” she says. Some courts dealing with s. 12 “have limited the instances and the purposes for which it can be used, and I think the statements in this [SCC] case — that those provisions should be seen as very broad and providing the courts with flexible powers — are important statements.
“What this case says is the way we deal with cases is not frozen in time,” says Matthews. “It will evolve to meet the demands of cases before the courts, in the context of the real imperative for co-ordination for superior courts with overlapping jurisdictions.”