Endean v. Canadian Red Cross Society et al., [2016] B.C.A.C. TBEd. OC.029

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 19, 2016
• Jurisdiction: Canada (Federal)
• Citations: [2016] B.C.A.C. TBEd. OC.029;2016 SCC 42

Endean v. Red Cross, [2016] B.C.A.C. TBEd. OC.029

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Currently being edited for B.C.A.C. - judgment temporarily in rough form.

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2016] B.C.A.C. TBEd. OC.029

Anita Endean, as representative plaintiff (appellant) v. Her Majesty the Queen in Right of the Province of British Columbia and Attorney General of Canada (respondents)

Dianna Louise Parsons, deceased, by her Estate Administrator, William John Forsyth, Michael Herbert Cruickshanks, David Tull, Martin Henry Griffen, Anna Kardish, Elsie Kotyk, Executrix of the Estate of Harry Kotyk, deceased, Elsie Kotyk, personally, and Fund Counsel for Ontario (appellants) v. Her Majesty the Queen in Right of Ontario, Attorney General of Canada, Canadian Red Cross Society, Her Majesty the Queen in Right of Alberta, Her Majesty the Queen in Right of Saskatchewan, Her Majesty the Queen in Right of Manitoba, Her Majesty the Queen in Right of New Brunswick, Her Majesty the Queen in Right of Prince Edward Island, Her Majesty the Queen in Right of Nova Scotia, Her Majesty the Queen in Right of Newfoundland and Labrador, Government of the Northwest Territories, Government of Nunavut and Government of the Yukon Territory (respondents) and Attorney General of Quebec (intervener)

Her Majesty the Queen in Right of Ontario (appellant on cross-appeal) v. Dianna Louise Parsons, deceased, by her Estate Administrator, William John Forsyth, Michael Herbert Cruickshanks, David Tull, Martin Henry Griffen, Anna Kardish, Elsie Kotyk, Executrix of the Estate of Harry Kotyk, deceased, Elsie Kotyk, personally, Attorney General of Canada and Canadian Red Cross Society (respondents on cross-appeal)

(35843, 36456; 2016 SCC 42; 2016 CSC 42)

Indexed As: Endean v. Canadian Red Cross Society et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

October 20, 2016.

Summary:

A class action proceeding concerning the infection of persons with Hepatitis C through the Canadian blood supply was certified in British Columbia. Concurrent class actions were certified in Ontario and Quebec. The proceedings culminated in a written national settlement agreement signed in 1999 whereby the governments of Canada and all the provinces and territories agreed to be bound by its terms upon the agreement receiving court approval. The agreement established a fund of $1.118 billion from which eligible claimants might receive compensation depending on the severity of their illness. Settlement approval motions were brought before the supervising judges of the class actions in Ontario, British Columbia and Quebec. Each of the courts ultimately approved the settlement. The agreement assigned a supervisory role to the superior court of each of the three provinces. In 2012, class action counsel moved for a declaration that the supervising judges of each of the three provinces could sit together outside of their respective provinces to hear contested applications. Separate applications in support of the declaration were brought in each province. The provinces opposed the applications on the basis that superior court judges did not have the jurisdiction to conduct hearings outside of their home province.

The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 1074, granted the declaration. A superior court judge could preside over any hearing outside of his or her province as long as the court had personal and subject-matter jurisdiction over the parties and issues in the proceeding.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 3053, also granted the application, as did the Quebec trial court. British Columbia and Ontario appealed the trial decisions in their respective jurisdictions. Quebec did not appeal.

The British Columbia Court of Appeal, in a decision reported at (2014), 352 B.C.A.C. 7; 601 W.A.C. 7, allowed the appeal.

The Ontario Court of Appeal, LaForme and Lauwers, JJ.A., dissenting in part, also allowed the appeal. See (2015), 331 O.A.C. 71. The representative plaintiffs in the British Columbia and Ontario actions appealed. Ontario cross-appealed. Quebec appeared as an intervener.

The Supreme Court of Canada allowed the plaintiffs' appeals and dismissed Ontario's cross-appeal.

Courts - Topic 288

Judges - Powers or jurisdiction - Judge temporarily out of the jurisdiction - This was a pan-national class action proceeding over which the superior courts of British Columbia, Quebec and Ontario had subject-matter and personal jurisdiction - British Columbia and Ontario appealed decisions of their respective Courts of Appeal holding that a judge of their respective superior courts did not have the discretion to hold a hearing outside his or her territory in conjunction with other judges managing related class actions - The Supreme Court of Canada allowed the appeals - The court held that "superior court judges in Ontario and British Columbia have the discretionary statutory power under s. 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6, and s. 12 of the Class Proceedings Act, R.S.B.C. 1996, c. 50 (the 'Acts'), to sit outside their home provinces, and a video link to an open courtroom in the judge's home jurisdiction is not required. A broad interpretation of these statutory powers, which confirms and reflects the inherent authority of judges to control procedure, helps to fulfil the purpose of class actions and to ensure that procedural innovations in aid of access to justice will not be stymied by unduly technical or time-bound understandings of the scope of the class action judge's authority." - Further, the open court principle did not necessarily require a video link between the out-of-province courtroom where the hearing took place and a courtroom in the judge's home province - See paragraphs 1 to 70.

Courts - Topic 288

Judges - Powers or jurisdiction - Judge temporarily out of the jurisdiction - The Supreme Court of Canada concluded that "In pan-national class action proceedings over which the superior court has subject-matter and personal jurisdiction, a judge of that court has the discretion to hold a hearing outside his or her territory in conjunction with other judges managing related class actions. This is provided that the judge will not have to resort to the court's coercive powers in order to convene or conduct the hearing and the hearing is not contrary to the law of the place in which it will be held. This discretion must, of course, be exercised in the interests of the administration of justice. In Ontario and British Columbia, this discretion flows from s. 12 of those provinces' respective [Class Proceedings] Acts in relation to motions properly falling within that section." - Further, "absent some clear limitation, ... the inherent jurisdiction of the superior courts extends to permitting the court to hold the sort of hearing in issue here. ... [T]here is no constitutional or common law limitation and no statutory limitation in either Ontario or British Columbia. It follows that unless there is a statutory limitation in the jurisdictions which do not have provisions comparable to s. 12 ..., the superior courts there can hold hearings of this nature." - See paragraphs 58 and 62.

Courts - Topic 288

Judges - Powers or jurisdiction - Judge temporarily out of the jurisdiction - The Supreme Court of Canada set out a framework to provide superior court judges with some general guidance as to how to proceed when exercising their discretion to sit extra-provincially - The court stated that "The underlying assumption is that the judge would have subject-matter and personal jurisdiction over the matter if the hearing were held within his or her home jurisdiction. First, the judge should consider whether sitting in a province other than his or her own will impinge or could be seen as impinging on the sovereignty of that province, creating impermissible extraterritorial effects in that province or preventing the court from competently presiding over the hearing. Second, the judge should weigh the benefits and costs of the proposed out-of-province proceeding. This could include consideration of the nature of the proceeding, issues of fairness to the parties, the ability and willingness of the home province media to fulfil its role of surrogate for the public in that province, and the broader interests of the administration of justice. Thus, factors to weigh could include: the length and cost of the out-of-province hearing compared to a hearing in the home province; whether the parties have agreed to travel out of the latter and whether the proposed location imposes undue burdens on the parties or the court; and whether there is a public interest in the hearing taking place in the home province or whether access to justice favours an out-of-province hearing, among others. Third, the judge should consider what terms, if any, should be imposed. Only by way of example, this may include considering conditions as to the payment of extraordinary costs occasioned by having the hearing in the proposed location and whether the interests of justice would be best served by requiring a video link back to the judge's home jurisdiction. While such a link is not required, a judge should take into account the effect that the presence or absence of such a link has on open justice and may order a link where appropriate. The judge should have good reason to refuse to order a link when requested." - See paragraphs 72 to 75.

Courts - Topic 296

Judges - Powers or jurisdiction - Attendance by video conference - [See first and third Courts - Topic 288 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The Supreme Court of Canada stated that "The inherent powers of superior courts are central to the role of those courts, which form the backbone of our judicial system. Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a 'reserve or fund of powers' or a 'residual source of powers', which a superior court 'may draw upon as necessary 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'" - See paragraph 23.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The Supreme Court of Canada concluded that courts ought to look first` to their statutory powers before considering their inherent jurisdiction - The courts had recognized that, given the broad and loosely defined nature of these powers, they should be "exercised sparingly and with caution" - See paragraphs 22 to 24.

Courts - Topic 4806

Common law - General - Hearings - Open court - [See first Courts - Topic 288 ].

Courts - Topic 5681

Provincial courts - General - Jurisdiction or powers - General - [See both Courts - Topic 2004 ].

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General - [See first and second Courts - Topic 288 ].

Counsel:

Sharon D. Matthews, Q.C., J.J. Camp, Q.C., and Michael Sobkin, for the appellant, Anita Endean, as representative plaintiff;

Keith Evans and Katherine Webber, for the respondent, Her Majesty The Queen in Right of the Province of British Columbia;

Robert J. Frater, Q.C., and Kathryn Hucal, for the respondent/respondent on cross-appeal, the Attorney General of Canada;

Paul J. Pape and Shantona Chaudhury, for the appellants/respondents on cross-appeal, Dianna Louise Parsons et al.;

John E. Callaghan and Alex Zavaglia, for the appellant, the Fund Counsel for Ontario;

Josh Hunter, Brent Kettles and Lynne McArdle, for the respondent/appellant on cross-appeal, Her Majesty The Queen in Right of Ontario;

No one appeared for the respondent/respondent on cross-appeal, the Canadian Red Cross Society;

Caroline Zayid, H. Michael Rosenberg and Adam Goldenberg, for the respondents, Her Majesty The Queen in Right of Alberta et al.;

Written submissions only by Dana Pescarus, Carole Soucy and Manon Des Ormeaux, for the intervener.

Solicitors of Record:

Camp Fiorante Matthews Mogerman, Vancouver, British Columbia and Michael Sobkin, Ottawa, Ontario, for the appellant, Anita Endean, as representative plaintiff;

Attorney General of British Columbia, Vancouver, British Columbia, for the respondent, Her Majesty the Queen in Right of the Province of British Columbia;

Attorney General of Canada, Ottawa, Ontario, for the respondent/respondent on cross-appeal, the Attorney General of Canada;

Pape Barristers, Toronto, Ontario, for the appellants/respondents on cross-appeal, Dianna Louise Parsons et al.;

Gowling WLG (Canada) Inc., Toronto, Ontario, for the appellant, the Fund Counsel for Ontario;

Attorney General of Ontario, Toronto, Ontario, for the respondent/appellant on cross-appeal, Her Majesty the Queen in Right of Ontario;

McCarthy Tétrault, Toronto, Ontario, for the respondents, Her Majesty the Queen in Right of Alberta et al.;

Attorney General of Quebec, Quebec, Quebec, for the intervener.

These appeals and cross-appeal were heard on May 19, 2016, by McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada. The decision of the court was delivered on October 20, 2016, and included the following opinions:

Cromwell, J. (McLachlin, C.J.C., Abella, Cromwell, Moldaver, Gascon, Côté and Brown, JJ., concurring) - see paragraphs 1 to 81;

Wagner, J. (Karakatsanis, J., concurring) - see paragraphs 82 to 101.