the debacle over insurance defence settlements in the Hollinger litigation
demonstrates, the greatest difficulty with copycat actions — from the
perspective of defendants — is that the trend may rob defendants of finality,
the one benefit of class actions that clearly inures to them.
complexity to the jurisdictional issue is Currie v. McDonald's Restaurants of
Canada Ltd., the Ontario Court of Appeal decision that recognizes that Canadian
plaintiffs may be bound by a U.S.
class action judgment or settlement but imposes relatively onerous notice
requirements on American defendants attempting to enforce them.
only so much money available to settle all claims," says Joe Groia of Groia
& Company, "and courts on both sides of the border will be careful to
ensure that nobody finds themselves out in the cold."
all follows, of course, from the cross-border commerce between the world's
largest set of trading partners.
the economies merge, so does the litigation, creating a complicated
jurisdictional and procedural maze that has heightened, rather than dampened,
the enthusiasm and co-operation between plaintiffs' firms on both sides of the
number-one trend in Ontario is in attempts to
class action lawsuits using the same factual and expert evidence upon which the
American action is based," says Robert L. Armstrong of Ogilvy Renault LLP.
U.S. courts haven't done much to discourage the
been surprised at how willing U.S.
courts were to allow Canadian plaintiffs access to discovery from U.S. cases,"
says Paul Morrison of McCarthy Tétrault LLP, citing the decision of the U.S.
Supreme Court in Intel v. AMD.
even as the recently enacted Class Action Fairness Act (CAFA) — which moves
most class actions from plaintiff-friendly state courts to federal jurisdiction
— threatens to dampen class action enthusiasm in the United States,
cross-border class actions show no sign of abating in Canada.
continue to see many product liability cases that are Xeroxes of what's going
on in the United States,"
says James Hodgson of Hodgson Shields DesBrisay O'Donnell LLP.
of Canada's 10 provinces now
have class action legislation (Prince Edward Island
does not), compared to just three provinces that had such legislation (Quebec, Ontario, and British Columbia) four
although the six latecomers have much smaller populations and economies than
the first three, there are already signs that the plaintiffs' bars in these
other provinces have grand designs.
enactment of class action legislation throughout the country has people vying
for turf," says Kent Thomson of Davies Ward Phillips & Vineberg LLP.
"That's just going to make the plaintiffs' class action bar stronger."
the pot is Tony Merchant of the Merchant Law Group in Regina. Merchant has ruffled the feathers of
the class action bars in Ontario and British Columbia by
applying for carriage of the Canadian Vioxx cases.
just throws out claims in various provinces in the hope of getting some of the
action," says Morrison. "He's like a mining prospector who's putting stakes in
Merchant is unapologetic.
seeing a tug of war between east and west for control of class actions," he
lawyers are especially galling. If something happens in Ontario,
they think it should bind Medicine Hat [Alta.]
and Inuvik [N.W.T]. And they don't give much
thought to the fact that it takes four years to get a trial date in Toronto and then it costs
$15 for a cab from your hotel to court."
Manitoba, with a class action regime that has no costs,
easy certification, and opt-out provisions for national classes, is also
"Manitoba has targeted class actions like Delaware has targeted corporations," says Won Kim of Roy
Elliott Kim O'Connor LLP, whose Toronto firm is
considering opening an office in Winnipeg.
his part, Merchant has already opened offices in five provinces, and his firm's
strategy may herald the arrival of national plaintiffs' class action law firms
— which in turn could hook up with their American counterparts in the hope of
acquiring continental clout.
going to find more and more boutiques setting up across the country," predicts
Malcolm Ruby, a class action lawyer with Gowling Lafleur Henderson LLP.
of their favourite places will undoubtedly be Quebec,
which enacted class legislation in 1978, some 15 years before Ontario, the second province to do so.
the first 20 years or so, however, the vast majority of cases were homegrown
actions unique to the Quebec
environment. But when Ontario and British Columbia enacted class action legislation in
jurisprudence developed a broader national base, followed quickly by a
wasn't long before the province's judiciary became known for a liberal approach
to certification. The Quebec
legislature added to that reputation in 2003 when it changed the class action
rules by removing the requirement for plaintiffs to file any affidavit material
in support of certification.
April, the Quebec Court of Appeal upheld the constitutionality of the measure
in Option Consommateurs v. Pharmascience Inc.
liberal and inexpensive certification procedure, then, means that Quebec could well become
a proving ground for copycat actions.
will rush to the jurisdiction that is the most favourable," says Rob Bell of
Borden Ladner Gervais LLP.
difficulty for plaintiffs, and the advantage for defendants, is that Quebec judges have been
reluctant to certify national classes.
it comes to jurisdiction, no one knows what Canadian courts will come up with
to resolve provincial conflicts," says Morrison.
that sentiment, Trisha Jackson of Torys LLP believes the defence bar would
"very much look forward to getting some guidance from the Supreme Court of
can order the judgments cited in this article through www.caseimage.ca or by calling our CaseLaw
Service at (905)841-6472. Currie
v. McDonald's Restaurants of Canada Ltd. Order No. 005/052/092, pp. 19; Option
Consommateurs v. Pharmascience Inc. Order No. 005/150/124, pp. 18.