Endean v. Canadian Red Cross Society et al., (2014) 352 B.C.A.C. 7 (CA)

• Judge: Saunders, Tysoe and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 25, 2013
• Jurisdiction: British Columbia
• Citations: (2014), 352 B.C.A.C. 7 (CA);2014 BCCA 61

Endean v. Red Cross (2014), 352 B.C.A.C. 7 (CA);

    601 W.A.C. 7

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. FE.029

Anita Endean, as representative plaintiff (respondent/plaintiff) v. Her Majesty the Queen in Right of the Province of British Columbia (appellant/defendant) and The Canadian Red Cross Society and The Attorney General of Canada (respondents/defendants) and Prince George Regional Hospital, Dr. William Galliford, Dr. Robert Hart Dykes, Dr. Peter Houghton, Dr. John Doe, Her Majesty the Queen in Right of Canada, and Her Majesty the Queen in Right of the Province of British Columbia (respondents/third parties)

(CA041078; 2014 BCCA 61)

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

British Columbia Court of Appeal

Saunders, Tysoe and Goepel, JJ.A.

February 17, 2014.

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 trial courts of Ontario and Quebec also granted the declaration. British Columbia appealed. A similar appeal was pending in Ontario. The Quebec decision had not been appealed.

The British Columbia Court of Appeal allowed the appeal. The common law prohibited domestic courts from holding hearings outside their territorial boundaries. The court's inherent jurisdiction was not a basis upon which the declaration could be granted. It was not appropriate for the court in these circumstances to modify the common law rule. Such a major law reform was for the legislature to determine. A superior court judge had the discretion to sit outside the province with his or her counterparts to hear concurrent applications under the settlement agreement. The hearing of the application in the British Columbia proceeding had to be conducted in a British Columbia courtroom, although the judge might actually be present from a location outside the province.

Courts - Topic 21

Stare decisis - Authority of judicial decisions - The common law - General principles - See paragraphs 42 to 84.

Courts - Topic 28

Stare decisis - Authority of judicial decisions - The common law - Modification or extension of common law rule - See paragraphs 63 to 70.

Courts - Topic 288

Judges - Powers or jurisdiction - Judge temporarily out of the jurisdiction - See paragraphs 76 to 83.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - See paragraphs to 57 to 61.

Courts - Topic 4806

Common law - General - Hearings - Open court - See paragraph 69.

Cases Noticed:

Parsons v. Canadian Red Cross Society (1999), 103 O.T.C. 161; 40 C.P.C.(4th) 151 (Sup. Ct.), refd to. [para. 7].

Endean et al. v. Canadian Red Cross Society et al. (1999), 24 B.C.T.C. 13; 68 B.C.L.R.(3d) 350 (S.C.), refd to. [para. 7].

Honhon v. Canada (Procureur général), [1999] J.Q. No. 4370 (S.C.), refd to. [para. 7].

Parsons v. Canadian Red Cross Society - see Kotyk Estate et al. v. Canadian Red Cross Society.

Kotyk Estate et al. v. Canadian Red Cross Society, [2013] O.T.C. Uned. 3053; 2013 ONSC 3053, refd to. [para. 19].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81; 76 D.L.R.(4th) 256, refd to. [para. 21].

Ewachniuk v. Law Society of British Columbia (1998), 104 B.C.A.C. 117; 170 W.A.C. 117; 156 D.L.R.(4th) 1; 46 B.C.L.R.(3d) 203 (C.A.), agreed with [para. 22].

Fontaine et al. v. Canada (Attorney General) et al., [2012] B.C.T.C. Uned. 839; 2012 BCSC 839, refd to. [para. 24].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161; 130 D.L.R.(4th) 385, refd to. [para. 29].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 29].

R. v. Pilarinos (D.) et al., [2001] B.C.T.C. 1690; 2001 BCSC 1690, refd to. [para. 30].

Honhon v. Canada (Attorney General), 2013 QCCS 2782, refd to. [para. 34].

Conseil scolaire francophone de la Colombie-Britannique et al. v. British Columbia et al. (2013), 447 N.R. 204; 341 B.C.A.C. 1; 582 W.A.C. 1; 361 D.L.R.(4th) 227; 2013 SCC 42, refd to. [para. 44].

O.E.X. Electromagnetic Inc. v. Coopers & Lybrand, [1991] B.C.J. No. 3465 (S.C.), refd to. [para. 50].

Buchan v. Moss Management Inc. et al. (2010), 291 B.C.A.C. 278; 492 W.A.C. 278; 9 B.C.L.R.(5th) 276; 2010 BCCA 393, refd to. [para. 57].

Ontario v. Criminal Lawyers Association of Ontario - see R. v. Russel (W.I.).

R. v. Russel (W.I.) (2013), 447 N.R. 111; 308 O.A.C. 347; 363 D.L.R.(4th) 17; 2013 SCC 43, refd to. [para. 58].

Lines v. Gordon et al. (2009), 268 B.C.A.C. 128; 452 W.A.C. 128; 306 D.L.R.(4th) 59; 2009 BCCA 107, refd to. [para. 60].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81; 61 D.L.R.(4th) 577, refd to. [para. 63].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 69].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125; 9 C.R.(4th) 342, refd to. [para. 70].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; 120 D.L.R.(4th) 289, refd to. [para. 74].

Stack v. New York, New Haven, and Hartford Railroad Company (1900), 177 Mass. R. 155, refd to. [para. 76].

Authors and Works Noticed:

Cote, John E., The Reception of English Law (1977), 15 Alta. Law Rev. 29, p. 30 [para. 44].

Counsel:

D.C. Prowse, Q.C., and K.D. Evans, for the appellant (defendant), Her Majesty the Queen in Right of the Province of British Columbia;

J.J. Camp, Q.C., and S. Matthews, Q.C., for the respondent (plaintiff);

P.B. Vickery, Q.C., and M.E. Tessier, for the respondent (defendant), The Attorney General of Canada;

W.A. Ferguson, for the respondent, Fund Counsel for British Columbia.

This appeal was heard at Vancouver, B.C., on November 25, 2013, before Saunders, Tysoe and Goepel, JJ.A., of the British Columbia Court of Appeal. Goepel, J.A., delivered the following judgment for the court on February 17, 2014.