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Focus: Lawyer blames plaintiffs’ bar for gaps in class action database

|Written By Julius Melnitzer

A veteran class action practitioner says Ontario’s plaintiffs bar shoulders considerable responsibility for the shortcomings of the Canadian Bar Association’s national class action database.

‘There’s a very real divide between plaintiffs’ counsel who sometimes work together and sometimes do not,’ says Kent Thomson.

“Ontario lawyers have been very protective of their copyright on pleadings to the point of ignoring judges’ directions to file with the database,” says Ward Branch of Vancouver’s Branch MacMaster LLP.

The database, established in 2007 to help deal with issues arising from multijurisdictional class actions, contemplates plaintiffs’ counsel filing pleadings and certification motions. But despite a 2011 CBA protocol reaffirming the obligation to file, a specific practice rule in Nova Scotia requiring compliance, and practice directions at the Federal Court as well as in Ontario, Alberta, British Columbia, Newfoundland, Quebec, Saskatchewan, and the Yukon, there are severe limitations in the data.

“If I had to guess, I’d say that there are twice as many Ontario class actions as filings in the database would indicate,” says Branch, whose publications are themselves an important source for information about Canadian class actions.

The obstacle appears to lie in the competitive nature of the class actions bar, a fact that has spawned an increasing number of carriage motions of late.

“There’s a very real divide between plaintiffs’ counsel who sometimes work together and sometimes do not,” says Kent Thomson, a defence-side class actions lawyer and head of the litigation department at Davies Ward Phillips & Vineberg LLP.

“So if the consequence of registering a case is that you expose your pleading to other plaintiffs’ counsel who mimic it or use it as a springboard, you can understand why there would be powerful disincentives to file on the database.”

The idea behind the database was that class action counsel could determine whether certain issues were already before a court and then co-ordinate their activities. “But what happens in real life is that you get those people who work together for the most part and then you get the outliers and they’re the problem,” says Thomson.

Alan Farrer, managing partner at Thomson Rogers, says the lawyers at his firm post to the database whenever they start a class action. “But not everyone at other firms do,” he notes.

Farrer believes lawyers may be more eager to use the database if there were demonstrable and tangible benefits associated with filing to it.

“For example, if lawyers could use the database information in support of settlement or fee approval applications, that would be a start,” he says. “It would also help if the database was current and generated statistical evidence of the kind that might be helpful in a courtroom.”

Even in its current state, Farrer maintains, it’s not easy to retrieve information from the database nor is it easily searchable.

These considerations, however, don’t appear to have deterred the Quebec bar.

“The filings from Quebec are very accurate and the lawyers quite forthcoming,” says Branch. “Quebec also has a practice rule that requires filing with Quebec’s own database and that rolls over into the national one.”

When the CBA first created the database, the organization’s web site touted it as one-stop shopping for information about new class actions. That has clearly turned out to be an overstatement.

And when the CBA created its national task force on class actions, which in 2011 gave rise to the Canadian judicial protocol for the management of multijurisdictional class actions, its web site warned that “as carriage motions and jurisdictional disputes in national class actions become more numerous, failure to resolve the issues of duplicative and competing class actions will result in the continued waste of resources for plaintiffs, defendants, and the courts alike.”

As the failure to come up with a meaningful national database suggests, the “continued waste” is clearly continuing.

For more, see "CBA tackles national class action".

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