"The percentage of class proceedings that are copycat actions is going up," says Deborah Glendinning of Osler Hoskin & Harcourt LLP.
a trend that's evident throughout
As 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
"There's 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."
It all follows, of course, from the cross-border commerce between the world's largest set of trading partners.
As 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 borders.
number-one trend in
been surprised at how willing
So 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
And 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.
"The 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
"Merchant 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 the ground."
But Merchant is unapologetic.
seeing a tug of war between east and west for control of class actions," he
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
"You're 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
the first 20 years or so, however, the vast majority of cases were homegrown
actions unique to the
wasn't long before the province's judiciary became known for a liberal approach
to certification. The
In 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
"Everybody 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
"When it comes to jurisdiction, no one knows what Canadian courts will come up with to resolve provincial conflicts," says Morrison.
Echoing 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 Canada."
Readers 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.