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Which province is best for class actions?

|Written By Daryl-Lynn Carlson

While there’s no single province in Canada that serves as an ideal jurisdiction to initiate a class action lawsuit, there can be subtle limitations in the laws that can help lawyers decide where to launch a claim.

‘If you look at the Canadian landscape today, there isn’t a class action haven,’ says Shaun Finn.

For example, Ontario has updated its Securities Act to make it easier for shareholders to sue the officers and directors of a company based on misrepresentation or omissions in publicly disclosed documents.

Aside from that, the provinces have various subtleties related to product liability, consumer laws, and environmental matters that could direct which jurisdiction is best for launching an action.

Shaun Finn of McCarthy Tétrault LLP’s Montreal office has taken a look at the provincial laws across the country to determine the differences in each jurisdiction’s class action legislation and whether there’s a single place that’s more receptive to that type of litigation than others.

So far, he has concluded that there isn’t such a place. “If you look at the Canadian landscape today, there isn’t a class action haven,” he says.

There have been some significant class actions that have been decided across the country, including precedent-setting cases determined in the Atlantic provinces.

Nevertheless, Finn says there’s some advantage in selecting certain provinces over others depending on the nature of the class action.

For example, he notes that Quebec, unlike other provinces, has been somewhat more favourable to environmental class actions, while mass torts tend to be more prevalent in British Columbia and Ontario.

Product liability class actions are popular in all jurisdictions, while securities matters are now more attractive in Ontario, Saskatchewan, Manitoba, and Newfoundland because of amendments to the laws in each respective province.

Although Quebec had previously been viewed as a more plaintiff-friendly jurisdiction, Finn says some recent decisions, particularly at the Court of Appeal, have adopted “a more balanced and rigorous approach to the admission of evidence, certification, and class description” that renders it less amenable to claims.

On the other hand, Ontario had been viewed as more defendant-friendly but has arguably moved in a different direction as a result of cases such as Markson v. MBNA Canada Bank and Cassano v. Toronto-Dominion Bank, according to Finn.

“The Ontario courts interpreted the provision dealing with damages and said that it is not necessary in Ontario to establish that every class member has suffered a damage,” he says. “This is seen as an instrument by the Ontario courts to take a much more flexible approach to class action certification.”

In terms of initiating a national class action in Canada, Finn says the province generally shouldn’t be the primary factor. Instead, he emphasizes that “the plaintiff class should be drawn from all persons who suffered the same wrong, irrespective of where they happen to reside.”

While any province could be a possible venue for a national class action, there could be additional benefits or, alternatively, disadvantages with some jurisdictions’ opt-in or opt-out requirements.

Finn notes that although Canada has a less robust Federal Court system, Ontario moved forward many years ago through cases such as Nantais v. Telectronics Proprietary (Canada) Ltd.

The case suggested that Ontario hopes to become the “province of choice for nationwide proceedings in Canada,” he says. “According to the Ontario court, as long as proper notice is afforded to all potential plaintiffs, a provincial court should be able to certify a nationwide class.”

Finn adds that in the case of Canada Post Corp. v. Lépine in 2009, the Supreme Court suggested that national class actions are a good forum. Lawyers still have many questions, however.

“The time is now ripe for the Supreme Court to explain clearly when and under what conditions such national or multi-jurisdictional class actions are appropriate and when they are not,” Finn says.

Christopher Naudie, a partner at Osler Hoskin & Harcourt LLP in Toronto, says Ontario can be an ideal jurisdiction for many lawsuits, particularly following its Securities Act amendments. As well, judicial experience in class actions due to the sheer number of cases that have been certified here is also a factor.

“Ontario has been generally receptive and is becoming more receptive to more types of class actions,” he says. “I think that as a result, plaintiffs may see more opportunity to bring class proceedings in Ontario.”

While Naudie typically represents defence clients in class actions, he notes that for matters that include plaintiff groups spanning a wider scope, Ontario is a very conducive jurisdiction to certifying cross-border and international claims.

“In Ontario, the courts are flexible in their approach to certification,” he acknowledges.

As a result, some people feel that Ontario is a good place to launch a class action depending on the nature of the case.

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