Ruling coming if judges can sit outside province
The Supreme Court of Canada has pledged to hear two cases in May 2016 that will decide whether Canadian j udges can hear cases in courtrooms located outside their home provinces.
For most Canadians, the cases at issue deal with a national tragedy, the tainted blood supply scandal that resulted into the Krever Inquiry and billions in class action lawsuits.
Yet for lawyers, the Supreme Court’s eventual rulings in the cases will have an impact that should reach beyond the AIDS and hepatitis C blood tragedy and set the course for nationwide class actions in the future. At issue before the Supreme Court is whether judges from British Columbia and Ontario can overturn an ancient common law legal rule that prevents them from hearing Canadian cases argued in courtrooms outside their home province.
“This issue traces back to the old English rule that English judges couldn’t sit outside England, because of concerns about access to open courts and sovereignty considerations,” explains Chris Naudie of Osler, Hoskin and Harcourt LLP in Toronto. “But how do you apply that in a federal state where a national class action involving a mass wrong has to be resolved?”
The two cases, one from Ontario and the other from B.C., deal with a 1999 nationwide settlement arising from multi- jurisdictional lawsuits brought by individuals infected with hepatitis C found in Canadian blood products between 1986 and 1990.
“The settlement involved $1.1 billion, thousands of class members, and required an efficient method of administration,” Naudie says.
Judges from Ontario, B.C. and Quebec are supervising the administration of the settlement. Lawyers for the plaintiffs want to extend a deadline for filing settlement claims, and they proposed the motion be heard in a “neutral” jurisdiction, Alberta. Attorneys general from the provinces objected, arguing their judges cannot sit outside home jurisdictions. Conflicting court decisions ensued.
Quebec’s Superior Court found that there were no constitutional or statutory obstacles to a Quebec judge sitting outside the province, and that case was not appealed.
The Ontario Court of Appeal ruled that Ontario judges could sit outside the province for that purpose; the British Columbia Court of Appeal ruled that its judges could not. Those are the cases that are heading to the Supreme Court of Canada for an expedited hearing scheduled for May 17, 2016.
Indeed, the need for a Su- preme Court ruling is evident from the variety of judicial views emerging out of B. C. and Ontario. Robert Bauman, Chief Justice of the B. C. Supreme Court, originally found that nothing prevents a B.C. judge from sitting outside the province. The B.C. Court of Appeal overturned his ruling, but stipulated B.C. judges can extend hearings beyond the province by telephone or other media so long as the judge is actually sitting in B.C.
In March 2015, a divided Ontario Court of Appeal held that Ontario judges could sit outside the province so long as there was a video link from the place where the judge was sitting to an open courtroom in Ontario.
“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,” Naudie says. “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.”
Despite the differences in the jurisprudence, Naudie says the cases seem to gener- ate a rough consensus that judges can conduct hearings that in some way extend beyond their home province. Some judges would require there to be a video link of some kind between the home and outside provinces, while others question whether even that is necessary. “Arguably, these decisions endorse the Canadian Bar Association protocol governing multi-jurisdictional class proceedings.”
Whatever t he Supreme Court decides, the confusion will not necessarily end as other outstanding jurisdictional issues relating to national class actions, not addressed by these cases, will remain.
“These cases will only address part of that mess,” says J. J. Camp of Camp Fiorante Matthews Mogerman in Vancouver. “Still, we believe that it’s smart and appropriate and lawful for judges to sit together outside their home jurisdictions because that would allow them to confer in real time and result in fewer conflicts in the law.”
The SCC has signalled its recognition of the cases’ significance by expediting the appeals, which will be heard in May 2016.
“The resolution of these two cases will shape the scope of inter- jurisdictional coordination for national class actions in Canada by determining whether or not provincial judges may sit outside their own jurisdiction when supervising a settlement in a national class action,” writes Craig Ferris, a partner with Lawson Lundell LLP in Vancouver.”