Endean v. British Columbia

Endean v. British Columbia
Collection
Supreme Court Judgments
Date
2016-10-20
Neutral citation
2016 SCC 42
Report
[2016] 2 SCR 162
Case number
35843, 36456
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
British Columbia
Subjects
Courts
Notes
SCC Case Information: 35843, 36456
Decision Content
SUPREME COURT OF CANADA
Citation: Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162
Appeals heard: May 19, 2016
Judgment rendered: October 20, 2016
Dockets: 35843, 36456
Between:
Anita Endean, as representative plaintiff
Appellant
and
Her Majesty the Queen in Right of the Province of
British Columbia and Attorney General of Canada
Respondents
And Between:
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
and
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
And:
Her Majesty the Queen in Right of Ontario
Appellant on cross-appeal
and
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
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 81)
Concurring Reasons:
(paras. 82 to 101)
Cromwell J. (McLachlin C.J. and Abella, Moldaver, Gascon, Côté and Brown JJ. concurring)
Wagner J. (Karakatsanis J. concurring)
Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162
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
‑ and ‑
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
and
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
Indexed as: Endean v. British Columbia
2016 SCC 42
File Nos.: 35843, 36456.
2016: May 19; 2016: October 20.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the courts of appeal for british columbia and ontario
Courts — Jurisdiction — Class actions — Hearings outside superior court’s home province — Superior court judges in three provinces supervising implementation of pan‑national class action settlement — Motions relating to settlement brought before supervisory judges — Class counsel proposing that supervisory judges sit together in fourth province to hear motions — Parties agreeing that judges have discretionary power to sit together outside their home provinces, but disagreeing on source of power and conditions under which it may be exercised — Whether source of authority is statutory or an aspect of inherent powers of superior court — Whether video link to open courtroom in judges’ home jurisdiction is condition for exercise of authority — Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12 — Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 12.
The superior courts of British Columbia, Quebec and Ontario certified concurrent class action proceedings on behalf of individuals infected with hepatitis C by the Canadian blood supply between 1986 and 1990. The British Columbia and Quebec class actions included residents of those provinces, while the Ontario class action included all other persons in Canada. The parties reached a pan‑Canadian settlement agreement in 1999, which assigned a supervisory role to the British Columbia, Quebec and Ontario superior courts and provided that decisions of those courts only took effect if they were materially identical.
In 2012, class counsel filed motions before the supervisory judges relating to the settlement agreement and proposed that the motions be heard by the three judges sitting together in one location. British Columbia, Quebec and Ontario opposed the proposal on the basis that the judges did not have the jurisdiction to conduct hearings outside their home province. Motions for directions were brought in each jurisdiction to resolve the objection. All three motions judges concluded that it was permissible for the superior court judges to sit in a province other than their respective home province with their judicial counterparts to hear the settlement agreement motions. Only 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 concluded that a video link was required between the out‑of‑province courtroom and an Ontario courtroom. The British Columbia Court of Appeal found that the common law prohibited superior court judges from sitting outside the province, but that it was permissible for a judge who was not physically present in the province to conduct a hearing taking place in the province by telephone, video conference or other communication medium.
The representative plaintiffs appeal to this Court and Ontario cross‑appeals. The parties now agree that the superior court judges have a discretionary power to sit together outside their home provinces to hear a motion without oral evidence in the context of a pan‑Canadian settlement agreement. However, there is no agreement concerning the source of this power and the conditions under which it may be exercised.
Held: The appeals should be allowed and the cross‑appeal should be dismissed.
Per McLachlin C.J. and Abella, Cromwell, Moldaver, Gascon, Côté and Brown JJ.: 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, 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.
To determine the source of their discretionary power to sit outside their home jurisdiction, courts ought to look first to their statutory powers before considering their inherent jurisdiction. Given the broad and loosely defined nature of the inherent powers of superior courts, they should be exercised sparingly and with caution. In Ontario and British Columbia, superior court judges have the discretionary statutory power under s. 12 of the Ontario Class Proceedings Act, 1992 and s. 12 of the British Columbia Class Proceedings Act (the “Acts”) to sit outside their home provinces. 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. There are no constitutional, statutory or common law limitations that restrict the scope of the broad and general language of these provisions and that prevent a judge from sitting outside his or her province for the purposes in issue in these cases.
Section 12 of the Acts should be understood as both confirming and reflecting the inherent jurisdiction of the superior courts to govern their own processes. Thus, in common law jurisdictions where comparable provisions do not exist, the analysis of the courts’ inherent jurisdiction would lead to the same result, subject to any limitations on inherent jurisdiction there applicable, such as constraints imposed by the Constitution, by any statutory provisions or by common law rules. 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.
A video link between the out‑of‑province courtroom where the hearing takes place and a courtroom in the judge’s home province is not a condition for a judge to be able to sit outside his or her home province. Neither the Acts nor the inherent jurisdiction of the court imposes such a requirement. The open court principle is not violated when a superior court judge exercises his or her discretion to sit outside his or her home province without a video link to the home jurisdiction.
The court’s discretion to hold a hearing outside its territory must be exercised in the interests of the administration of justice. The court should also be guided by the following broad considerations: whether sitting in another province will impinge or could be seen as impinging on the sovereignty of that province; whether there are benefits or costs to the proposed out‑of‑province proceeding; and whether any terms should be imposed, such as conditions as to the payment of extraordinary costs or use of a video link to the court’s home jurisdiction.
Per Karakatsanis and Wagner JJ.: There is agreement that the superior court judges in these cases have discretionary statutory authority under s. 12 of the Acts to sit outside of their home provinces, and that a video link is not mandatory in an extraprovincial hearing.
The open court principle encompasses more than a singular requirement that justice not be carried out in secrecy. It fosters public confidence in the court system and furthers public understanding of the administration of justice. In addition, the open court principle protects the media’s right to access courts and the circumstances necessary for the media to fulfil their role as surrogates for the public. A judge sitting extraprovincially should be prepared to consider how to give effect to the educational and community-centric aspects of the open court principle. In particular, courts should strive to make class actions procedure visible and understandable to class members and the community where the proceedings were initiated. While the court should not presumptively order that a video link back to the home provinces be set up where the court sits extraprovincially, members of the public, the media, or counsel can request that a video link or other means be used to enhance the accessibility of the hearing. If such a request is made, or the judge considers it appropriate, a video link or other means to enhance accessibility should be ordered, subject to any countervailing considerations.
Cases Cited
By Cromwell J.
Referred to: Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158; Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572, 337 O.A.C. 315; Fantl v. Transamerica Life Canada, 2009 ONCA 377, 95 O.R. (3d) 767; Ontario New Home Warranty Program v. Chevron Chemical Co. (1999), 46 O.R. (3d) 130; R. v. Rose, [1998] 3 S.C.R. 262; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Re Southam Inc. and The Queen (No. 1) (1983), 41 O.R. (2d) 113; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; Scott v. Scott, [1913] A.C. 417; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.
By Wagner J.
Referred to: Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.
Statutes and Regulations Cited
Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 12.
Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12.
Code of Civil Procedure, CQLR, c. C‑25, art. 1045.
Code of Civil Procedure, CQLR, c. C‑25.01, art. 11.
Constitution Act, 1867, s. 92(14) .
Court of Queen’s Bench Act, C.C.S.M., c. C280, s. 76(1).
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11(2), 15(1), 135.
Federal Courts Rules, SOR/98‑106, r. 29.
Judicature Act, S.P.E.I. 2008, c. 20, s. 61.
Nova Scotia Civil Procedure Rules, r. 86.05(4).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.08.
Rules of Court, N.B. Reg. 82‑73, rr. 37.08, 38.08.
Supreme Court Act, R.S.B.C. 1996, c. 443, s. 3(1).
Supreme Court Civil Rules, B.C. Reg. 168/2009, rr. 22‑1(5), 23‑5(4).
Authors Cited
Alberta Law Reform Institute. Final Report No. 85. Class Actions. Edmonton: The Institute, 2000.
Black, Vaughan, and Stephen G. A. Pitel. “Out of Bounds: Can a Court Sit Outside Its Home Jurisdiction?” (2013), 41 Adv. Q. 503.
British Columbia. Legislative Assembly. Official Report of Debates of the Legislative Assembly (Hansard), vol. 20, No. 20, 4th Sess., 35th Parl., June 6, 1995, pp. 15070, 15072 and 15075‑76.
British Columbia. Legislative Assembly. Official Report of Debates of the Legislative Assembly (Hansard), vol. 20, No. 23, 4th Sess., 35th Parl., June 8, 1995, pp. 15231‑32.
British Columbia. Ministry of Attorney General. Consultation Document: Class Action Legislation for British Columbia. Victoria: The Ministry, 1994.
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Cunliffe, Emma. “Open Justice: Concepts and Judicial Approaches” (2012), 40 Fed. L. Rev. 385.
Halsbury’s Laws of England, vol. 24, 5th ed. London: LexisNexis, 2010.
Jackson, Georgina R., and Janis Sarra. “Selecting the Judicial Tool to get the Job Done: An Examination of Statutory Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters”, in Janis P. Sarra, ed., Annual Review of Insolvency Law 2007. Toronto: Thomson Carswell, 2008, 41.
Jacob, I. H. “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23.
Macdonald, Roderick A. “Access to Justice in Canada Today: Scope, Scale and Ambitions”, in Julia Bass, W. A. Bogart and Frederick H. Zemans, eds., Access to Justice for a New Century — The Way Forward. Toronto: Law Society of Upper Canada, 2005, 19.
Ontario. Attorney General’s Advisory Committee on Class Action Reform. Report of the Attorney General’s Advisory Committee on Class Action Reform. Toronto: The Committee, 1990.
Ontario. Law Reform Commission. Report on Class Actions, vol. II. Toronto: Ministry of the Attorney General, 1982.
Ontario. Legislative Assembly. Official Report of Debates (Hansard), 1st Sess., 35th Parl., November 18, 1991 (online: www.ontla.on.ca/web/house‑proceedings/house_detail.do?Date=1991‑11‑18&Parl=35&Sess=1&locale=en).
Ontario. Legislative Assembly. Official Report of Debates (Hansard), 2nd Sess., 34th Parl., June 12, 1990 (online: www.ontla.on.ca/web/house‑proceedings/house_detail.do?Date=1990‑06‑12&Parl=35&Sess=1&locale=en).
Resnik, Judith. “The Democracy in Courts: Jeremy Bentham, ‘Publicity’, and the Privatization of Process in the Twenty‑First Century” (2013), 10 NoFo 77.
Uniform Law Conference of Canada. Uniform Class Proceedings Act (1996) (online: http://www.ulcc.ca/en/uniform‑acts‑new‑order/current‑uniform‑acts/82‑josetta‑1‑en‑gb/uniform‑actsa/class‑proceedings‑act/1395‑uniform‑class‑proceedings‑act‑1996).
Warren, Marilyn. “Open Justice in the Technological Age” (2014), 40 Monash U.L. Rev. 45.
APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Tysoe and Goepel JJ.A.), 2014 BCCA 61, 59 B.C.L.R. (5th) 113, 352 B.C.A.C. 7, 601 W.A.C. 7, 49 C.P.C. (7th) 316, [2014] 5 W.W.R. 481, [2014] B.C.J. No. 254 (QL), 2014 CarswellBC 363 (WL Can.), setting aside a decision of Bauman C.J.B.C., 2013 BCSC 1074, [2013] B.C.J. No. 1304 (QL), 2013 CarswellBC 1828 (WL Can.). Appeal allowed.
APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Juriansz, LaForme and Lauwers JJ.A.), 2015 ONCA 158, 125 O.R. (3d) 168, 331 O.A.C. 71, 381 D.L.R. (4th) 667, 64 C.P.C. (7th) 227, [2015] O.J. No. 1257 (QL), 2015 CarswellOnt 3336 (WL Can.), setting aside in part a decision of Winkler C.J.O., 2013 ONSC 3053, 363 D.L.R. (4th) 352, 43 C.P.C. (7th) 412, [2013] O.J. No. 2343 (QL), 2013 CarswellOnt 6659 (WL Can.). Appeal allowed and cross‑appeal dismissed.
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.
The judgment of McLachlin C.J. and Abella, Cromwell, Moldaver, Gascon, Côté and Brown JJ. was delivered by
Cromwell J. —
I. Introduction and Issues
[1] Class actions are an important procedural tool designed to help improve access to justice. They are meant to provide a fair and expeditious resolution of the plaintiffs’ claims and, to ensure that they do, class action judges have broad and flexible procedural powers. The limits of those powers are tested by these appeals.
[2] At issue is the power of superior court judges who are implementing a pan-national class action settlement to sit outside their home provinces to hear and decide a motion relating to it.
[3] While all parties agree that judges may do this under certain conditions, there is disagreement about two related issues:
1. What is the source of authority for the judge to sit outside his or her home jurisdiction: Is it statutory or an aspect of the inherent powers of a superior court?
2. Is a video link to an open courtroom in the judge’s home jurisdiction a condition for the exercise of this authority?
[4] In my opinion, 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.
II. Facts
[5] Class counsel thought that it would be more efficient and effective for the superior court judges charged with managing and implementing a pan-national settlement of the proceedings in three provinces to sit together in a fourth province to hear motions relating to the settlement. Class counsel’s attempt to pursue this course of action gave rise to the issues now before the Court.
[6] By way of a brief background, the superior courts of British Columbia, Quebec and Ontario certified concurrent class action proceedings on behalf of individuals infected with hepatitis C by the Canadian blood supply between January 1, 1986 and July 1, 1990. The British Columbia and Quebec class actions included residents of those provinces, while the Ontario class action included all other persons in Canada who received infected blood during the relevant period.
[7] The parties reached a pan-Canadian settlement agreement in 1999 (“1986-1990 Hepatitis C Settlement Agreement”). The Government of Canada, as well as all provinces and territories, agreed to be bound by the settlement agreement once it received court approval. The governments of provinces and territories other than Quebec and British Columbia attorned to the jurisdiction of the Ontario courts. The supervisory judges of the class actions in Ontario, British Columbia and Quebec heard settlement motions and approved the settlement agreement.
[8] The settlement agreement assigned a supervisory role to the British Columbia, Quebec and Ontario superior courts: s. 10.01(1). However, the decisions of the courts under the agreement only took effect if all three courts made orders “without any material differences”: s. 10.01(2).
[9] Class counsel subsequently wanted to extend the deadline in the settlement agreement for filing first claims for benefits from the settlement funds. Therefore, in 2012, they filed motions before the three superior court supervisory judges for approval of a proposed protocol. The motions were brought under s. 10.01 of the settlement agreement and, as noted earlier, required orders “without any material differences” in all three courts.
[10] Class counsel proposed that the most efficient and effective procedure for adjudicating the motions would be to have them heard by the three supervisory superior court judges sitting together in one location so that they would hear the same submissions and be better positioned to issue orders without “material differences”. The supervisory judges were to adjudicate on a paper record.
[11] Each province opposed class counsel’s proposal on the basis that the superior court judges did not have the jurisdiction to conduct hearings outside their home province. Separate motions for directions were brought in each jurisdiction to resolve the objection. The motions raised the issue of whether the superior court judges could sit in a province other than their respective home province with their judicial counterparts to hear a motion concerning the settlement agreement.
III. Judicial History
[12] All three motions judges concluded that this was permissible. The decision of the Quebec motions judge, which was not appealed, is not at issue here. Even though I appreciate that, at the time, the Quebec Code of Civil Procedure, CQLR, c. C-25, included a provision comparable to s. 12 of the Acts at art. 1045, I make no comment concerning the law of Quebec in relation to the issues raised on appeal.
A. Ontario
[13] Winkler C.J.O., sitting as a judge of the Superior Court of Justice, concluded that a superior court judge in Ontario could preside over a hearing outside Ontario where the court had personal and subject-matter jurisdiction over the parties and the issues: 2013 ONSC 3053, 363 D.L.R. (4th) 352. He was of the view that there were no constitutional or statutory prohibitions preventing this. He found that the court’s inherent jurisdiction to control its own process empowered the court to exercise its discretion to hold a hearing outside Ontario having regard to whether sitting outside the province promoted the interests of justice. Winkler C.J.O. concluded that such a discretion should be exercised in this case.
[14] In the Ontario Court of Appeal, the majority of the court concluded that the basis for the power to conduct a hearing outside the province was the superior court’s inherent jurisdiction: 2015 ONCA 158, 125 O.R. (3d) 168, per LaForme J.A., Lauwers J.A. concurring on this point. However, a differently constituted majority also concluded that a video link was required between the out-of-province courtroom and an Ontario courtroom: Juriansz J.A., Lauwers J.A. concurring on this point.
B. British Columbia
[15] Bauman C.J.S.C. (as he then was) adopted the reasons of Winkler C.J.O., with additional comments on the law in British Columbia, and confirmed his authority under the court’s inherent jurisdiction to sit in this matter outside British Columbia without the requirement of a video link: 2013 BCSC 1074. The British Columbia Court of Appeal, however, disagreed on both points: 2014 BCCA 61, 59 B.C.L.R. (5th) 113.
[16] The Court of Appeal found that the common law prohibited superior court judges from sitting outside British Columbia and that any change to that ancient rule should be made by the legislature rather than by the courts. However, the court was of the view that it was permissible for a judge, who was not physically present in the province, to conduct a hearing taking place in a British Columbia courtroom by telephone, video conference or other communication medium. The court concluded that such a hearing — which would involve the judge exercising his or her jurisdiction or authority in a hearing in British Columbia — would not offend the common law prohibition against judges conducting hearings outside British Columbia.
IV. Analysis
[17] As I noted at the outset, it is common ground that the superior court judges have personal and subject-matter jurisdiction over the parties and issues in these proceedings and that they have a discretionary power to sit together outside their home provinces to hear a motion without oral evidence in the context of a pan-Canadian settlement agreement. However, there is no agreement concerning the interrelated questions of what is the source of this power and the conditions under which it may be exercised; those two issues are the focus of these appeals.
A. First Issue: The Source of the Court’s Power to Sit Outside Its Home Jurisdiction
(1) Introduction
[18] The first issue relates to the source of the court’s discretionary power to sit outside its home jurisdiction and, more specifically, whether it is a statutory power or one that derives from the inherent jurisdiction of the superior courts. This issue gives rise to a number of questions which I address in turn.
[19] I will turn first to the question of whether courts ought to look first to their statutory powers before considering their inherent jurisdiction. I conclude that they should.
[20] Next, I will consider whether s. 12 of the Acts in Ontario and British Columbia confer on the superior courts in those provinces the power to hold the sorts of hearings in issue here outside the territorial limits of the province. Given the broad and general language of these provisions, the answer depends on whether there are any constitutional, statutory or common law limitations which would have to be understood as restricting the scope of that broad and general language. I conclude that there are none and that the provisions grant the authority to conduct the hearings in issue.
[21] Finally, I will explain why, in my view, these provisions should be understood as both confirming and reflecting the inherent jurisdiction of the superior courts to govern their own processes. Thus, in common law jurisdictions where comparable provisions do not exist, the analysis of the courts’ inherent jurisdiction would lead to the same result, subject to any limitations on inherent jurisdiction there applicable.
(2) Should the Courts Look First to Their Statutory Powers Before Turning to Consider Inherent Jurisdiction?
[22] The answer to this question is yes.
[23] 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”: I. H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, at p. 51, cited with approval in, e.g., Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 20; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 24; and MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at paras. 29-31.
[24] The courts have recognized that, given the broad and loosely defined nature of these powers, they should be “exercised sparingly and with caution”: Caron, at para. 30. It follows that courts should first determine the scope of express grants of statutory powers before dipping into this important but murky pool of residual authority that forms their inherent jurisdiction: see, e.g., Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379, at paras. 63-68. As The Honourable Georgina Jackson and Janis Sarra write, “[i]t is only where broad statutory authority is unavailable that inherent jurisdiction needs to be considered as a possible judicial tool to utilize in the circumstances”: “Selecting the Judicial Tool to get the Job Done: An Examination of Statutory Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters”, in J. P. Sarra, ed., Annual Review of Insolvency Law 2007 (2008), 41, at p. 73.
(3) Are There Statutory Authorities in Ontario and British Columbia That Allow the Superior Court Judges to Sit Outside Their Provinces?
[25] The parties canvassed various potential sources of statutory power. In Ontario, we were referred to s. 12 of the Class Proceedings Act, 1992 and rule 1.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In British Columbia, we were referred to s. 12 of the Class Proceedings Act and rule 23-5(4) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. As in my view s. 12 of the respective Acts provides a statutory basis for holding these hearings, it is not necessary to consider the rules of court.
[26] It will be convenient to consider the very similar provisions of s. 12 of the two Acts together.
[27] Section 12 of the Class Proceedings Act, 1992 in Ontario provides:
12. The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.
[28] Section 12 of the Class Proceedings Act in British Columbia reads:
12. The court may at any time make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms it considers appropriate.
[29] The grammatical and ordinary sense of these provisions leaves little doubt that the legislatures intended judges in class proceedings to have, and to exercise, broad, discretionary powers to manage the proceedings to ensure their “fair and expeditious determination”.
[30] The object and scheme of the Acts also support this broad interpretation of s. 12 of the Acts. As this Court observed in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, class proceedings are intended to improve access to justice through the efficient and judicially economical disposition of litigation: paras. 27-28. A broad interpretation of s. 12 of the Acts furthers this object of class action legislation: ibid. A broad interpretation of these provisions is also faithful to this Court’s interpretation of the Ontario legislation in Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, where it found that the Ontario Class Proceedings Act, 1992 “should be construed generously”: para. 14. As this Court noted in that same case, “it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters”: para. 15.
[31] The legislative histories of the provisions also support the view that the provincial legislatures intended a broad role for both versions of s. 12 of the Acts.
[32] First, legislative debates of both the Ontario and British Columbia legislatures demonstrate the access to justice purpose of the Acts.[1] A broad interpretation of s. 12 furthers the access to justice objective of the Acts. Broad powers to manage class actions give judges the ability to take measures to ensure the fair and expeditious determination of issues arising in class proceedings, which furthers access to justice.
[33] Second, the legislative histories of these provisions also show that the legislatures in Ontario and British Columbia intended s. 12 of the Acts to be interpreted broadly.
[34] In Ontario, the Ontario Law Reform Commission’s Report on Class Actions (1982) was instrumental in the subsequent adoption of class action legislation in the province.[2] In its report, the Commission was of the view that “court[s] should have a broad general power in order to enable [them] to respond to the many management problems that are likely to arise at the various stages of a class action”: pp. 449-50. The Commission further observed that “[o]nly if judges are empowered expressly to assume an active role can this type of complex litigation be handled efficiently”: p. 450. The Commission recommended language substantially similar to that which was eventually adopted in s. 12 of the Ontario Class Proceedings Act, 1992: ibid. Similarly, the Attorney General’s Advisory Committee on Class Action Reform also commented that s. 12 “describes the general power of the Court to control its own process and to develop procedures as needed from case to case”: Report of the Attorney General’s Advisory Committee on Class Action Reform (1990), at p. 37.
[35] In British Columbia, the Ministry of the Attorney General drafted a consultation document referred to in legislative debates.[3] In that document, in relation to a provision similar to s. 12, the Ministry observed that “[c]ourts take a much more active role in managing the conduct of class actions than they do in ordinary actions” and observed that the Ontario statute also includes a “broad general management provision”: Consultation Document: Class Action Legislation for British Columbia (1994), at p. 5.
[36] Section 12 was also briefly discussed in legislative debates in British Columbia before the passing of the bill, when a concern was raised about the provision’s open-ended language.[4] In response to this concern, it was explained that giving “this authority to the court [in s. 12] is the best way to ensure that the protection is afforded to people who aren’t there or represented directly in the action”.[5]
[37] The Uniform Law Conference of Canada (“ULCC”) Uniform Class Proceedings Act (1996 proceedings) (online), which provides model legislation recommended for adoption across Canadian jurisdictions, is also instructive. The ULCC legislation contained language very similar to that in s. 12 of the Ontario Class Proceedings Act, 1992 and identical to that in s. 12 of the British Columbia Class Proceedings Act. The commentary on this provision observed that “[s]ection 12 grants the court broad discretion in making orders”: p. 8-7. Further, it states that “[t]his broad discretion is thought necessary as the court must protect not only the interests of the representative plaintiff and the defendant but also the interests of absent class members”: ibid.
[38] A broad interpretation of s. 12 is also consistent with the approach taken by other courts to the interpretation and application of class action legislation. For example, in Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572, 337 O.A.C. 315, Strathy C.J.O. observed that while s. 12 is procedural and does not allow a judge to override other provisions of the Class Proceedings Act, 1992, the provision nonetheless entitles case management judges in class actions “to seek and impose creative solutions to the efficient determination of the issues”: para. 70. In Fantl v. Transamerica Life Canada, 2009 ONCA 377, 95 O.R. (3d) 767, Winkler C.J.O. specifically observed that s. 12 of the Class Proceedings Act, 1992 provides the court with a “broad, discretionary jurisdiction”: para. 42. Similarly, in Ontario New Home Warranty Program v. Chevron Chemical Co. (1999), 46 O.R. (3d) 130 (S.C.J.), Winkler J. (as he then was) noted that, in including s. 12 in the Class Proceedings Act, 1992, “the legislature has given the court a flexible tool for adapting procedures on a case specific basis”: para. 41.
[39] In conclusion, the legislatures intended courts in Ontario and British Columbia to have wide powers to make orders respecting the conduct of class proceedings. Thus, the appropriate starting point for the analysis in these appeals is s. 12 of the Acts, rather than the superior court’s inherent power over procedure. The broad powers appear on their face to authorize the sort of extraterritorial hearing which class counsel sought in these cases.
[40] While the legislation must be interpreted purposively and remedially, its broad and general language invites consideration of whether there are any clear common law, statutory or constitutional barriers to the court sitting outside its territorial boundaries. If there were, then the broad language of the provisions would have to be read as subject to those limita