Endean v. British Columbia stems from a class action certified separately in B.C., Ontario, and Quebec, involving people infected with Hepatitis C through the Canadian blood supply.
Class action counsel had brought motions for directions in the three provinces on whether the supervising judges could sit together to hear a settlement motion in Alberta.
The attorney general for Canada agreed with counsel that the judges should be able to do so, and this was supported by a B.C. Supreme Court decision on June 19, 2013.
However, the B.C. attorney general has successfully appealed the decision at the B.C. Court of Appeal.
Justice Richard Goepel’s decision, dated Feb. 17, 2014, said English common law only allowed superior court judges to conduct hearings within the province.
He wrote: “If British Columbia judges are going to be authorized to conduct hearings outside the province it is for the legislature to determine."
He added: “There is, however, no objection to a judge conducting a hearing in a British Columbia courtroom by telephone, video conference or other communication medium, even if the judge is not personally present in the courtroom, as long as the hearing itself takes place in a British Columbia courtroom.”
The attorney generals of Ontario and Quebec also oppose their judges sitting outside their province’s boundaries.
Chief Justice Warren Winkler ruled on May 24, 2013, that Superior Court of Ontario judges may preside over hearings conducted outside of the province, if they have personal and subject matter jurisdiction over the parties and issues in the proceeding.
In a Quebec Superior Court decision dated June 19, 2013, Chief Justice Francois Rolland agreed with Winkler.
An appeal on the Ontario decision has been adjourned.
Goepel rejected Winkler’s arguments on two main grounds. As well as arguing the common law did not allow judges to sit outside their territorial jurisdiction, the practice “endangers the open court principle,” he felt.
Conducting proceedings elsewhere would “clearly compromise” the ability of the public and local media to monitor cases, he said.
However, there is no need for a judge, counsel or witnesses to be physically present in a B.C. courtroom as long as they are linked up to a hearing within the province via telephone, video conference or other communication mediums, Goepel wrote.