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Judges to Adjudicate Common Matters in Class Actions Collectively in One Location


Written by on August 28th, 2013

Louise Moher

Associate 

Class actions were brought in Ontario, British Columbia, and Quebec on behalf of individuals who were infected with Hepatitis C through the Canadian blood supply.

In 1999, a joint pan-Canadian settlement agreement was approved by the court in all three cases. Under the terms of the agreement, the Superior Courts of each province retained supervisory jurisdiction over the enforcement of the settlement. The settlement agreement specified that any supervisory order relating to the administration of the settlement took effect at such time when all three judges had handed down substantially similar orders.

In Parsons v The Canadian Red Cross Society, 2013 ONSC 3053, Endean v Canadian Red Cross 2013 BCSC 1074, and Honhon c. Canada (Procureur général) 2013 QCCS 2782 (collectively, “the Parsons decisions”) counsel in each province sought directions from their respective Superior Courts on the ability of the three supervisory judges from the three jurisdictions to sit together in one physical location and adjudicate common matters. The Attorneys General of Ontario and British Columbia (“the provincial AGs”) opposed the motion and submitted that in order for the Superior Court of each province to have jurisdiction, the multijurisdictional hearing must be heard by way video-conference, as in Osmun v Cadbury Adams Canada Inc., 2012 ONSC 3837 (discussed previously here). The provincial AGs asserted that if the Justices physically presided over a multijurisdictional hearing in Alberta, they would lack jurisdiction.    

Justice Winkler of the Ontario court, Justice Bauman of the B.C. court, and Justice Roland of the Quebec court rejected the provincial AGs’ arguments on numerous grounds. The Justices determined that the inherent jurisdiction of the provincial Superior Courts includes the power to control its own process, and that the ability to hold a multijurisdictional hearing outside the Court’s home province is encompassed within that power. In particular, Justice Winkler stated, and the other Justices concurred, that the Superior Court’s personal and subject-matter jurisdiction was “not lost simply because the court presides over a motion in a location that is outside the court’s regular territorial limits.”  The Justices also ruled that in the present cases it was in the interests of justice to hold a multijurisdictional hearing as it would save valuable court resources and costs, avoid duplicative proceedings, encourage consistent judgments, and contribute to greater access to justice in class proceedings.  The Justices rejected the submission of the provincial AGs that the same results could be achieved by video-conference on the basis that the technology is wrought with technical and logistical constraints.

The new Parsons decisions demonstrate that Canadian courts are prepared to take a more unified approach to the administration of national class action proceedings.

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