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Supreme Court of Canada to rule on powers of judges in multi-jurisdictional class actions

The entire class action bar is hopeful that the Supreme Court of Canada will facilitate the way courts deal with multi-jurisdictional class actions when it releases its judgments in two sister cases on Thursday

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The entire class action bar is hopeful that the Supreme Court of Canada will facilitate the way courts deal with multi-jurisdictional class actions when it releases its judgments in two sister cases on Thursday.
 
Parsons v. Ontario and Endean v. British Columbia both engage the right of judges to sit with judges from other provinces to hear arguments on multi-jurisdictional class actions. The challenge of reconciling traditional limits on the jurisdiction of Superior Court judges with the fair and efficient management of national class actions has posed a continuing dilemma for Canadian courts. Compounding the problem are carriage fights between plaintiffs’ law firms, which have become more heated than ever.
 
Parsons followed on a complex $1.1-billion settlement of the national class action relating to the hepatitis C tainted blood scandal. The sponsors of the settlement decided that judges from the provinces involved should all attend in Edmonton to supervise motions relating to the settlement. Certain parties, including the attorneys general from several provinces, objected to the process on the basis that judges could not sit outside their home jurisdiction. Related litigation then ensued in Ontario, BC and Quebec.
 
Parson produced three separate sets of lengthy reasons in the Ontario Court of Appeal.
  
“The court was unanimous in its conclusion that there was no constitutional or statutory bar requiring a judge to be physically present in Ontario, but the majority found that the open court principle required a video pipeline to an open Ontario courtroom,” said Chris Naudie of Osler, Hoskin & Harcourt in Toronto. “Justice Harry LaForme, however, did not feel a video link was required because there were practical challenges with it and resorting to it amounted to a form of legal fiction.”
 
About two months earlier, the B.C. Court of Appeal in Endean had overruled a decision of Chief Justice Robert Bauman of the Supreme Court relating to the jurisdictional issue. Bauman had concluded that nothing prevented a B.C. judge from sitting outside the province. The Court of Appeal, however, stipulated that B.C. judges who are outside the province can conduct a hearing by telephone, media or otherwise so long as the hearing is held in B.C.
 
Otherwise, in 2013, the Quebec Superior Court dealt with the same settlement in Honhon c. Canada. In a decision that was not appealed, the Quebec court, like Bauman, found that there were no constitutional or statutory principles to a Quebec judge sitting outside the province.
 
“All three courts appeared to be gravitating to a rough consensus that judges can sit outside their home province so long as there is a video link, with some judges questioning whether even that is necessary,” Naudie says. “Arguably, these decisions endorse the Canadian Bar Association protocol governing multijurisdictional class proceedings.”

Financial Post

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