Published in: Administrative Law Newsletter - 23.Nov.16 November 23, 2016

Case Summary: Supreme Court of Canada clarifies that Ontario and BC Class Proceedings Acts allow superior court judges to sit outside their home provinces

Administrative law – Class proceedings – Settlements – Parties – Judges – Powers and duties – Courts – Jurisdiction of court – Statutory powers – Extraprovincial proceedings

Endean v. British Columbia

The Supreme Court of Canada allowed appeals from the BC and Ontario Courts of Appeal and held that section 12 of the Ontario and BC Class Proceedings Acts allow superior court judges to sit outside their home provinces in certain circumstances.

[2016] S.C.J. No. 42

2016 SCC 42

Supreme Court of Canada

October 20, 2016

McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

The BC, Quebec, and Ontario Superior Courts certified concurrent class actions on behalf of individuals infected by hepatitis C from the Canadian blood supply between 1986 and 1990. The parties reached a pan-Canadian settlement in 1999, which assigned a supervisory role to the BC, Ontario, and Quebec Superior Courts.

In 2012, class counsel filed motions related to the settlement and proposed to have all three judges sit in one location to hear the motions. All three provinces opposed this proposal, on the basis that the superior courts did not have the jurisdiction to sit outside of their home provinces. Motions were then brought in each province to resolve this question. All three motion judges concluded it was permissible to hear the motions outside of their home provinces. The Attorney Generals of BC and Ontario appealed this decision.

The Ontario Court of Appeal decided the Superior Courts had the inherent jurisdiction to sit extraprovincially, but a video link was required between the courtroom outside Ontario and the Ontario courtroom. The BC Court of Appeal held the common law prohibited the Superior Court judges from sitting outside of BC, but it was permissible for a judge who was not physically present in BC to conduct a hearing taking place in BC by another communication medium.

The plaintiffs appealed to the Supreme Court of Canada (SCC). The Attorney General of Ontario cross-appealed.

The parties agreed that in pan-national class proceedings, superior court judges have the discretion to hold hearings outside of their home territory. The parties could not agree about the source of this jurisdiction and any conditions attached to it.

The SCC held that superior courts should first look to their statutory powers before considering their inherent jurisdiction. This is because the inherent jurisdiction may be considered a “residual source of powers”.

The SCC held that the ordinary meaning of the words in section 12 of the Class Proceedings Acts in BC and Ontario give broad discretionary powers to superior court judges to manage class proceedings to ensure a “fair and expeditious determination”. The object and scheme of these Acts also supports the broad interpretation of section 12. The legislative history of both provisions also supports a broad role for these provisions.

The SCC held the statutory provisions appear to authorize the extraterritorial hearing sought in this case. The SCC then considered whether there was any common law or constitutional or statutory rules that required a narrower interpretation of the statutory provisions. The SCC held that no such principles or rules existed.

The SCC held that 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. That is 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.

The SCC then considered whether a video link to the home courtroom was required. The SCC held this was not required for a judge to sit outside his or her home province. The SCC also held this was not necessarily required by the open court principle.

In a concurring judgment, two judges of the SCC added some additional comments relating to the open court principle when a court sits extraprovincially. Those comments suggested that if a videolink is requested by the media, public, or counsel, this type of request should generally be granted (subject to any countervailing considerations).

The SCC allowed the “Endean” appeal and the “Parsons” appeal. The SCC dismissed the cross-appeal of the Attorney General of Ontario. The parties agreed that no costs ought to be awarded and the SCC accepted this.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at