A group of lawyers and judges from across the country are poised to create some certainty this year in the baffling world of overlapping multijurisdictional class actions, but the effort faces serious opposition from some lawyers in at least one province.
In announcing the creation of its national class actions task force earlier this year, the Canadian Bar Association said the group of lawyers and judges would focus on the development of judicial protocols and possible legislative amendments to help bring order to identical lawsuits that spring up throughout the country.
It sounds like a good idea, but the group has some lawyers steaming mad.
Donald Bisson, chairman of McCarthy Tétrault LLP’s national class action group out of Montreal, highlights the controversy the CBA task force itself has generated within the Quebec bar.
Some lawyers adamantly oppose the idea of any group of lawyers discussing the issue in a national forum, he says.
“I know for a fact that some attorneys in Quebec do not want to participate in any Canadian bar class action panel.
It’s known that some of them, either on the defence or the plaintiff side, don’t want to participate because they feel that the only recommendation that any Canadian bar committee could say is, ‘Let’s have national classes or let’s have some kind of accommodation,’ when the opinion of these attorneys is that it should be only provincial classes.”
As Bisson says, “The issue, it’s totally in a mess now. It’s very hard to predict what will happen in the near future.”
Task force chairwoman Sylvie Rodrigue of Toronto, who helps lead Ogilvy Renault LLP’s class actions team, suggests the name of the task force may have caused some confusion.
She is well aware that, unlike the United States, Canada doesn’t have a multidistrict litigation system. That means there’s no single court here that could consolidate multiple class actions filed across the country.
In light of that, the task force will concentrate its work towards the multijurisdictional class action issue, which creeps in when identical cases come about in more than one province.
The issue began to take hold when British Columbia and Ontario adopted class action legislation in the 1990s, Rodrigue notes. Quebec instituted its own law in 1978.
In major class actions, such as product liability cases, separate filings will often arise in B.C., Ontario, and Quebec. The B.C. and Quebec claims would be for residents of those provinces only, while the Ontario case would be a national class excluding residents of those two provinces, Rodrigue points out.
“For the defendant, you still had to go to three jurisdictions, but there was no overlap in between the cases,” she explains. As result, defendants hoping to settle the actions began to attempt to bring the three cases together into a national class.
“This is the big problem we have,” says Rodrigue. “Was it constitutional for the one court to take over jurisdiction over the residents of the other province and is it binding over the residents of the other province?”
Of course, there is no way for the CBA group to settle that question. The Supreme Court of Canada will have to take on that task when it sees fit. (Its decision last year in Canada Post Corp. v. Lépine failed to clarify the issue).
But that hasn’t stopped some judges from certifying national class actions already, Rodrigue says.
“The judges are starting to write about, ‘Well, we can do it if there’s a real and substantial connection between the members of the class and the forum,’” she says.
While the judiciary has offered some direction in terms of the circumstances that permit a national class action in Canada, the academic community has been all over the board on the issue, Rodrigue notes.
The lack of a clear constitutional opinion seems to have prompted the CBA task force to seek out ways for lawyers and judges to work together to make the most of a somewhat anarchic system. Examples may include protocols for hearings held through videoconferencing and for judges in parallel proceedings to discuss the case.
“Because of the constitutional problem, obviously these are guidelines,” Rodrigue says. “It’s not binding unless the parties are willing to submit themselves to the guidelines.”
Koskie Minsky LLP partner Kirk Baert of Toronto says he plans to bring forward a few of his own ideas as a member of the task force. One key fix, he suggests, is the creation of guidelines for information sharing among counsel.
“One thing I think would assist is if we had some sort of protocol or practice direction that required the defendant, when it’s sued a second time - or a third or a fourth - to provide copies of those new claims to the counsel from the first case,” he says.
A centralized registry of all class actions in the country could also enhance communication, Baert says.
The CBA has created an online database that is “somewhat helpful but it’s nowhere near complete,” he notes, adding many problems that creep in late in proceedings wouldn’t arise if judges compelled lawyers to post case details to such a database.
“I also think it would protect class members because it would prevent the risk of one lawyer in one part of Canada settling the case, purportedly on behalf of the country, when there are other cases pending at the same time.
Waiting until there’s a big, huge fight over this means hundreds of thousands of dollars on all sides get wasted fighting about motions that, if you’d had a few meetings between the lawyers and the courts, you might save a lot of those motions and appeals.”
But Bisson notes there’s no easy cure for the problems surrounding overlapping class actions.
“Even for the parties, there’s no clear choice,” he says. “Does a plaintiff really want to represent all of Canada? Do class counsel in Quebec want to represent all of the class members in Canada?”
For her part, Rodrigue suggests the bar should reserve its expectations of the task force’s work.
“The goal here is not necessarily to transform this into the U.S. model MDL [multidistrict litigation] system and always end up going in one province,” she says. “The goal is to address the inefficiencies.”
For more on this issue, see "CBA tackles national class actions."