Managing Multi-Jurisdictional Class Proceedings – Proposals for Reform

Most Canadian jurisdictions (except PEI and the Territories) have Class Actions statutes and our courts are increasingly having to deal with the complex issues that class litigation presents. One of the most difficult issues is the co-ordination of litigation that involves class members in multiple jurisdictions. Because our federal courts (with a statutory jurisdiction) have not the sort of diversity jurisdiction that facilitates the consolidation of multi-state proceedings) our courts must fashion solutions within the structure of provincial superior court primacy over civil litigation.

The defects of the current system have been described as follows:

Overlapping, multijurisdictional class actions impede access to justice.

They create confusion for members of the public who may be presumptively included in more than one class action and subject to conflicting court judgments.

They also create uncertainty as to the size and composition of class membership in a class action, thereby increasing litigation costs, jeopardizing the viability of existing class actions, and magnifying the risk to law firms litigating such cases.

They dissipate court resources as different courts in different jurisdictions might hear and issue decisions on the same set of facts involving the same claimants.

In Tiboni v. Merck Frosst Canada Justice Maurice Cullity called for the development of a court-to-court agreement or protocol:

If decisions of provincial courts on carriage motions are not to be respected throughout Canada, this merely underlines – and makes even more urgent – the need for an agreement or protocol among the superior courts that will provide for nationally-accepted carriage motions and determine the jurisdiction in which such motions will be heard.

On the other hand, the Supreme Court of Canada in Canada Post v. Lépine called on provincial legislatures to pay more attention to the framework for national class actions, and recommended establishing more effective methods for managing jurisdictional disputes:

As can be seen in this appeal, the creation of national classes also raises the issue of relations between equal but different superior courts in a federal system in which civil procedure and the administration of justice are under provincial jurisdiction. This case shows that the decisions made may sometimes cause friction between courts in different provinces. This of course often involves problems with communications or contacts between the courts and between the lawyers involved in such proceedings. However, the provincial legislatures should pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space. It is not this Court’s role to define the necessary solution.

So whose job was it? Enter the Canadian Bar Association.

The CBA National Task Force on Class Actions was formed to address these issues. It consists of senior judges, class and defence counsel and is drawn from every affected sector and jurisdiction.

Its mandate was to

* Study and explore the possibility of the development of a judicial protocol with the aim to:
* Allow for communication among judges in overlapping class actions proceedings
* Coordinate and harmonize activities in proposed overlapping class proceedings in order to maximize efficiency, reduce costs and avoid the duplication of effort;
* Honour the independence and integrity of the superior courts while promoting inter-provincial cooperation and respect for comity;
* Implement a framework of general principles to address basic administrative issues arising out of national and multijurisdictional class actions; and
* Provide for nationally-accepted carriage motions.
* Develop proposals for amendments to legislation to facilitate the administration of national and multijurisdictional class actions.

It is seeking comments on a Report and a draft Judicial Protocol that allows courts in different provinces to work together to coordinate these competing class actions as they move toward a hearing or settlement. It is seeking the comments of interested parties, including members of the class action bar, on its provisions.

The draft Judicial Protocol relies on existing provisions in the various provincial class proceeding statutes to establish a system whereby multiple and potentially overlapping class actions can move through two or more courts in an orderly manner. It would allow those courts to work together to make orders regarding case management and would allow those courts, if they all agree, to name a single judge to coordinate the scheduling of procedures in the various courts, or the administration of a settlement.

The purpose of the consultation is to ensure that the Judicial Protocol will meet the needs of counsel, the judiciary, and parties affected by class action litigation, and will be effective in solving the problems that may arise in multijurisdictional class actions.

The consultation period will be open until July 8, 2011. The Task Force will consider the comments received prior to preparing a finalized version of the Protocol and sending it to the CBA for its endorsement. If your practice includes class actions, please take the opportunity to offer your views on this proposed change to class action process.

Please send your comments on the Judicial Protocol to protocol@cba.org.

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