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Judicial leeway in class actions praised

Thursday, November 17, 2016 @ 7:00 PM | By Kim Arnott

The Supreme Court of Canada’s recent nod to procedural creativity by judges who are managing multijurisdictional class action proceedings is being welcomed by legal experts.

In Endean v. British Columbia 2016 SCC 42, the top court found that judges overseeing the co-ordination of the complex proceedings have “broad and flexible procedural powers” under provincial statutes and the inherent jurisdiction of the court.

“This is a positive development in managing really complicated class actions that are national in scope and that involve judges in several provinces,” says Jasminka Kalajdzic, Windsor law professor and co-author of The Law of Class Actions in Canada.

“I think the Supreme Court is stating very clearly that s. 12 of the Class Proceedings Act [in Ontario and British Columbia] gives wide scope to the case management judge to devise creative procedures to ensure the efficient and effective management of class actions.”

In considering appeals of decisions from both the Courts of Appeal for British Columbia and Ontario, the top court found that judges in class action proceedings have jurisdiction to sit outside their provinces to hear and decide on motions.

The question arose in the context of the $1.1 billion national settlement agreement to compensate Canadians infected with hepatitis C through the blood supply.

In 2012, the supervising judges from Ontario, British Columbia and Quebec sought to jointly hear and concurrently rule on motions from class counsel to extend the deadline to file claims.

Lower courts in each province found the superior court judges had jurisdiction to sit together in an Alberta courtroom to hear the motions. Those decisions were appealed in Ontario and British Columbia.

The Ontario Court of Appeal agreed with the motion judge that inherent jurisdiction provided authority to sit outside the province, but found a video link to an Ontario courtroom was required.

The British Columbia Court of Appeal ruled that common law prohibited judges from sitting outside the province’s boundaries. However it determined that a judge who wasn’t physically present in the province could preside over a B.C. court through a telephone, videoconference or other communication link.

In allowing the appeals of those two decisions by the representative plaintiffs, the Supreme Court found that authority for courts to control their processes in the interest of justice could be found in s.12 of the legislation governing class proceedings.

Statutory powers should be interpreted broadly, wrote now-retired Justice Thomas Cromwell, 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.”

In common law provinces without comparable s. 12 provisions, the court found that superior courts’ inherent jurisdiction would permit out-of-province hearings.

The court also ruled that establishing a video link to a home courtroom is not mandatory for a hearing taking place outside of a province.

The decision’s encouragement to judges to find unique and imaginative ways to manage national class actions will help in dealing with the “problematic and unresolved issues” surrounding such cases, says Kalajdzic.

Sharon Matthews, a Vancouver lawyer with Camp Fiorante Matthews Mogerman LLP who represents representative plaintiff Anita Endean, said it’s helpful to have the Supreme Court weigh in on s.12, which has received uneven interpretation by other courts.

She is also pleased to see the determination that the video link to a home courtroom is not required under the open court principle.

“The fact that the courts have the discretion to decide that on a case-by-case basis is sensible and welcome and efficient,” Matthews said, noting that while technological connections are often desirable, it is expensive “to have to have a video link back to an empty courtroom just because.”

Justice Cromwell’s reasons attracted the support of Chief Justice Beverely McLachlin and Justices Rosalie Abella, Michael Moldaver, Clément Gascon, Suzanne Côté and Russell Brown.

Justice Richard Wagner, with Justice Andromache Karakatsanis in agreement, authored concurring reasons expanding on the importance of the open court principle.

While agreeing that video links are discretionary, Justice Wagner suggested that judges sitting outside their province should strive to ensure proceedings are “visible and understandable to class members and the community where they were initiated.”

He also noted that “modern realities of communication and information dissemination may permit a more flexible understanding of what is required to ensure courtrooms are adequately accessible to the public. Information about what happens inside a courtroom may sometimes be shared through a variety of platforms.”

Jonathan Ptak, a Toronto-based plaintiff counsel and partner at Koskie Minsky, says changing technology makes it sensible to allow judges discretion to determine the most appropriate way to fulfil the open court principle.

“A video link perhaps is something we use today. Tomorrow it might be something quite different,” he said.

“I think this decision reflects the need in class actions to continue to innovate the court processes to achieve access to justice.”

But Christopher Naudie, a defence-side class actions lawyer who co-chairs the national class action specialty group at Osler, Hoskin and Harcourt LLP, questions the practical impact of the ruling.

“I’m not sure that we’re going to see a big change in our practice with respect to national class action settlements.”

He suggests video-linked courtrooms can achieve co-ordination between the courts while accommodating last-minute objectors or submissions.

Improvements in technology, as well as increased skill on the part of courtroom staff have made the process “pretty seamless,” Naudie adds, while options that don’t require anyone to travel are the most cost effective.

“I don’t think we’re going to see roaming judges with briefcases just yet, in part because the technology seems to be working and there are so many practical advantages to having a video link and an open courtroom.”

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