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Have judicial robes, can travel: judges can sit in other provinces

Judges of the Superior Court of Ontario may sit and make decisions in courtrooms in other provinces when the Ontario court has jurisdiction over the parties and issues in the proceeding, the Ontario Superior Court held recently: Parsons v. The Canadian Red Cross Society, 2013 ONSC 3053. This decision clarifies that the court’s inherent jurisdiction to control its own process includes the power to use its discretion in determining whether it is in the interest of justice to hold a hearing outside its home province.

This decision is important to class action practice, as it has become routine for courts in several provinces to hold joint hearings when class actions are proceeding in several provinces at once.

The issue of whether a judge from one province can sit and make decisions in the courtroom of another province arose as part of three concurrent class action proceedings brought against the Canadian Red Cross and other government entities by individuals who were infected with Hepatitis C by the Canadian blood supply. Class proceedings were brought in Ontario, British Columbia, and Quebec, with a judge from each province supervising the respective actions. A motion relating to a settlement agreement was to be heard by all three courts, and it was proposed that the most efficient way to hear the motion was to have the three supervisory judges sit together in one location, Edmonton. The Attorney General of Ontario (“AG Ontario”) objected to this proposal.

AG Ontario’s Arguments

AG Ontario made two main arguments in support of its position that the Ontario Superior Court of Justice has no jurisdiction to hear a contested motion while sitting outside of Ontario. Both of these arguments were unsuccessful.

First, AG Ontario argued that there was no statutory Canadian authority authorizing Ontario superior courts to hold hearings outside of the province, and as such, the court should look to English legal principles for guidance. In particular, AG Ontario pointed to the English common law principle that courts could not hold hearings outside of England, and argued that this principle of jurisdictional restriction is incorporated into Ontario’s laws by virtue of the Courts of Justice Act, R.S.O. 1990 c. C.43, s.11(2).

Chief Justice Winkler (sitting as a judge of the Superior Court) did not find this argument persuasive, however. Rather, Winkler CJO held that English law is not always instructive or applicable in governing the interprovincial relationships that exist in Canada, nor does English law necessarily accurately reflect or support Canada’s constitutional principles, including the importance mobility of Canadians across provincial lines and access to an equal quality of justice among the provinces.

AG Ontario’s second argument was that, historically, Ontario courts could not holding hearings outside of Ontario. Yet AG Ontario could not point to any constitutional or statutory limitation to support this position. In fact, Chief Justice Winkler noted that various incarnations of the Judicature Act permitted judges of the High Court of Justice to “sit and act, at any time and at any place, for the transaction of any part of the business of the courts”. Furthermore, the only common law authority AG Ontario put forth on this point: Ewanchiuk v. Law Society of British Columbia (1998), 156 D. L.R (4th) 1, where the issue of jurisdiction was related to the powers of a statutory tribunal, was also unpersuasive, as the conclusion that the tribunal had no power to sit outside of the province was not determinative of where a court of inherent jurisdiction may sit.

Superior courts can fully control their own process – even absent specific legislation

Winkler CJO held that there is no need for comprehensive legislation empowering a judge of the superior court to implement procedures that are designed to further the functions of a court’s inherent jurisdiction. In support of this position, he cited MacMillan Bloedel Ltd. v. Simpson [1995] 4 S.C.R. 725 (at para. 15) for the proposition that the inherent jurisdiction of the superior court includes the power of the courts to fully control its own process. Winkler CJO also cited Chief Justice McLachlin writing for the Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C. R. 534 in which she stated at paragraph 34: “absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them.”

Winkler CJO also noted that there have been past instances in which courts have filled the procedural void left by legislature in the context of class proceedings. For example, in Fontaine v Canada (Attorney General), the superior courts of Ontario, British Columbia, Quebec, Alberta and Saskatchewan sat together in Alberta to hear a motion, and superior courts from Manitoba, Yukon, Northwest Territories and Nunavut were linked to the Alberta courtroom via telephone.

Chief Justice Winkler determined that, in this instance, the Ontario Superior Court of Justice sought to engage its inherent jurisdiction in order to ensure convenience (with respect to the expenditure of cost and resources for the parties), and fairness in the legal proceeding (ensuring that the same submissions are received by all three judges and that the judgments are consistent as between the provinces) and this was therefore an appropriate circumstance to engage the court’s inherent jurisdiction.

Proper exercise of discretion

The final question the court considered was whether the court should in fact exercise its discretion to sit outside the territorial boundaries of Ontario. Chief Justice Winkler reiterated that a court should exercise its discretion sparingly in these circumstances, though he noted that there may be situations where the interests of justice require the court to exercise jurisdiction to hold a hearing outside of its home province. In the context of a class proceeding, the interests of justice include increasing judicial economy and increasing access to justice. In this instance, Winkler CJO held that holding a single hearing instead of three will save time, costs and other resources, and will ensure that the judgments are consistent, as any inconsistency could cause the parties to incur further expenses. Accordingly, Wrinker CJO determined that the interests of justice are served by having the joint hearing, and thus it is a proper exercise of the Ontario’s court discretion to sit and adjudicate the motion in Edmonton.

Fiona Campbell
Affleck Greene McMurtry LLP

Fiona Campbell

Fiona Campbell is a former associate of Affleck Greene McMurtry LLP

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