Multi-jurisdictional mess

Multi-jurisdictional mess
Illustration: Jeannie Phan

With no nationwide class litigation regime, managing
class proceedings in Canada can get complicated.

In October 2016, the
Supreme Court docket of Canada dominated in Endeanv. British Columbia that provincial Superior Court docket judges could hear
motions in multi-jurisdictional class proceedings outdoors their dwelling provinces.
However to the extent that the bar was ready for a call from the SCC that
would possibly present some readability on multi-jurisdictional class actions, Endean failed to supply that.

In the present day, the
class-action litigation bar continues to be ready for a case that may have a
important affect on the administration of multi-jurisdictional class proceedings;
however practitioners see different developments on this sector, corresponding to a low threshold to
class certification and conflicting legislation on litigants’ requirement to point out hurt.

“I don’t suppose
[Endean] has resulted in a sea change, and I don’t suppose
many individuals anticipated it to take action,” says Ranjan Agarwal, litigation accomplice at
Bennett Jones LLP in Toronto, whose follow consists of class actions. When
the Endean case acquired as much as the SCC, “it was
argued on fairly slender grounds.”

Of the instances
which have referred to Endean since that call was handed down,
“in none of them have you ever seen the courts increasing the powers of sophistication motion
judges in a major means,” says Sandra Forbes, accomplice at Davies Ward
Phillips & Vineberg LLP in Toronto, who makes a speciality of dispute decision
and competitors litigation, together with class actions.

Endean upheld the precept “that
class-action laws needs to be interpreted broadly and in line with the
objective of sophistication motion, which is to supply entry to justice,” she says, and
it gave a really broad definition to the inherent jurisdiction of the courtroom.

The Supreme
Court docket “discovered that even when there was a province that doesn’t have a particular
legislative provision that enables a class-action choose to make no matter orders
she or he thinks is acceptable for the conduct of the motion, that even in the event you
don’t have that statute provision, a choose might discover that energy inside [his or
her] inherent jurisdiction.”

A nationwide class motion
regime

In america, complicated class motion lawsuits are ruled by a
multi-district litigation system: a federal authorized process
designed to facilitate the processing of instances corresponding to air catastrophe litigation
and complicated product legal responsibility fits.

In Canada,
although, there isn’t any nationwide class litigation regime, a scenario one
practitioner has described as “a mess.”

“We proceed
to labour beneath uncertainty relating to enforcement of nationwide class actions,”
says Brad Dixon, the Vancouver-based nationwide co-chairman of the Class Actions
Group for Borden Ladner Gervais LLP. “You proceed to see events bringing
a number of settlement approval purposes in a number of jurisdictions, as a result of if
they proceed with a nationwide class motion in a single jurisdiction, the appliance
could not ‘stick.’” The Endean method could provide some effectivity,
says Dixon, however not an excellent deal and solely beneath distinctive instances.

So, to the
extent that there are a number of class actions throughout the nation, “you may have
a number of actions, not consolidated ones,” says Eliot Kolers, head of the
Litigation & Dispute Decision Group within the Toronto workplace of Stikeman
Elliott LLP. “They’re not managed by a single choose. Endean doesn’t change that.”

In typical multi-jurisdictional class motion
litigation, defendants and plaintiffs agree wherein province the category motion
ought to proceed, and legislation companies representing the varied plaintiffs and
defendants throughout the nation will be part of collectively in representing the category or
defending the motion. If British Columbia is chosen because the jurisdiction, for
instance, then the Ontario and Quebec instances would keep dormant, Kolers explains,
with every group of plaintiffs represented by counsel, typically at totally different companies
and in their very own provinces.

On this situation, says Kolers, “If there’s
one thing that wants nationwide approval — let’s say one defendant settles — then
all three teams of plaintiffs, who’re usually working collectively, will carry
settlement approval motions in every of their very own jurisdictions to get it
authorised in all three locations earlier than the settlement is carried out.”

A video-link
hookup can hyperlink courtrooms in a number of provinces, permitting individuals to see
all courtrooms concurrently. “One counsel will take the lead, and the opposite
counsel in different provinces will watch on TV. It’s all being performed on the identical
time on the identical day.” Within the Endean case,
the judges heard the movement sitting collectively, in particular person, on the convention they
all occurred to be attending on that day. However, says Kolers, “Till there’s a
nationwide multi-district litigation system, a case like Endean is extra of a one-off.”

In an article
penned for the Nationwide
Journal of Constitutional Legislation
in 2010, Peter Hogg and Gordon McKee questioned whether or not nationwide class
actions had been constitutional. However, says Agarwal, “There could also be different fashions that
might be adopted” which will afford extra co-operation between counsel and keep away from
competing class actions, keep motions and carriage motions.

Yves
Martineau, accomplice within the Litigation & Dispute Decision Group of Stikeman
Elliott’s Montreal workplace, says he has seen “quite a lot of co-operation”
amongst counsel in multi-jurisdictional class motion litigation over the previous
decade or so. “As soon as litigants select their venues of desire to go to trial,
judges in different provinces will present deference to that alternative and, because the
Supreme Court docket has stated [in CanadaPost Corp. v. Lépine], they need to . . . place confidence in honest remedy
[by] all provinces.”

In the long run,
although, “it’s the courtroom that may have the final phrase” relating to jurisdiction in
which to listen to the category motion, says Martineau.

In 2009’s Lépine case, the courts had been “politely lectured” for failing to supply the
wanted co-operation and extra environment friendly administration between the courts, he says.
That case concerned two class proceedings that gave rise to a scenario of lis pendens, because the Quebec continuing had been commenced earlier than the one in
Ontario.

“There was a
drawback with the courts being possibly over-protective of their very own residents and
not absolutely assured that they are going to get nearly as good a remedy within the ‘overseas’ or
different provincial courtroom,” says Martineau. “Kudos to the courts, beginning with
the Supreme Court docket, and decrease courts for a way [the SCC’s] message was obtained
and utilized,” he says, including that “we’re all the higher” for that call.

Though a brand new
Quebec Code provision, instituted originally of
2016, requires Quebec courts to guard the rights
and pursuits of Quebec residents in multi-jurisdictional class actions
when stays of proceedings are requested in Quebec, Martineau says that the
provision is just a “codification” of the ideas that had been already
utilized in Quebec courts.

In the present day, increasingly more, “you will notice courts
co-operating between themselves” in multi-jurisdictional class actions, he
notes. “Every choose . . . will talk with judges in command of a category
motion” on the identical matter, he says. “One judgment may have affect” and
litigants in different jurisdictions will usually abide by that judgment.

Agarwal can be noticing a “modification of
the foundations” when plaintiffs co-operate in school actions. For instance, he says,
Ontario has a value regime whereas British Columbia doesn’t, and plaintiffs could
determine to carry an motion in Ontario however stipulate that it’s a no-cost regime,
as in B.C.

Uneasy alliance

For defendants’
counsel, Agarwal says, “We’re seeing a whole lot of co-operation amongst plaintiffs’
attorneys, and the result’s everybody’s come to an uneasy alliance.” However there
stay pockets of non-co-operation amongst plaintiffs’ attorneys, the place defendants
face class actions on the identical difficulty in a couple of common-law province, he
says.

“I feel now defendants would possibly . . . use the
guidelines of the courtroom and say, ‘I’m going to turn into a extra aggressive occasion so
that my consumer is just dealing with one motion versus three or 4 actions.’”

Search for defendants’ counsel asking the
courtroom to make rulings “as to how that is going to function” if plaintiffs aren’t
co-operating with one another, he says.

“I feel we could also be in for a bit of extra
aggressive manoeuvering by defendants as time goes on,” with defendants shifting
on their very own to remain actions or shifting beneath s. 6 in Saskatchewan’s Class
Actions Act for an order for course in the right way to handle the actions, in instances
the place plaintiffs aren’t co-operating with one another throughout jurisdictions.

Different class motion litigation problems with
concern to defence counsel aren’t particularly multi-jurisdictional.

 

Low bar to
certification

The bar to certification
is low, particularly in Ontario and British Columbia, say Kolers and others.

“We don’t really feel
that the plaintiffs are essentially assembly the evidentiary thresholds that
they need to be required to fulfill, in competitors instances, for instance,” he says.
“It positive could be good to have a [multi-district litigation system] system, however
[it] doesn’t appear doubtless [that] we’ll get one any time quickly. What we’re going
to see is extra of staying motions and procedural fights.”

BLG’s Dixon
calls it “a pendulum impact. . . . The certification process isn’t supposed
to be a process on the deserves, however [there] needs to be some foundation actually by
the declare itself,” he says. “The pendulum is swinging to a decrease and decrease
threshold.”

Requirement
to point out hurt

Godfrey
v. Sony Company

concerned an attraction from a B.C. Supreme Court docket determination permitting certification of
a category motion on behalf of each direct and oblique purchasers of optical disc
drives. Within the determination of the British Columbia Court docket of Enchantment, handed down in
August, the courtroom selected a number of certification issues for sophistication actions
that would have wide-ranging results on competitors class actions commenced in
Canada.

One discovering was that there was no
requirement to point out hurt to all members of a category, taking a broad
interpretation of the Supreme Court docket of Canada’s determination in 2013’s class
motion trilogy holding that the commonality requirement is happy the place
the plaintiffs current a believable methodology to reveal that an overcharge
reached the oblique purchaser stage of the distribution channel, not
every particular person withinthat
stage.

There may be an
excellent software for depart to attraction to the Supreme Court docket on a few of the
points raised within the case, says Forbes.

“However the debate
is what did [then Supreme Court of Canada] Justice Rothstein imply when he stated
in [Professional‑Sys Consultants Ltd. v. Microsoft Company] that the plaintiffs have to point out they
have a technique that may show damages on a class-wide foundation?” asks Forbes.
In a case the place there are numerous ranges of purchasers, each direct and
oblique, as are sometimes seen in competitors and anti-trust instances, he says, “Do
you need to present that hurt is handed on to the oblique purchaser stage of the
class or does the plaintiff have to point out some type of methodology that the
trial choose can use at trial [as to] who on this class was harmed and belongs
within the class and who wasn’t harmed and shouldn’t belong to the category? What has
to be proven at certification?”

It’s a “reside authorized difficulty,” says Kolers, as a part of the
present battle between British Columbia and Ontario legislation (B.C. has stated that
oblique purchasers’ claims are legitimate, whereas Ontario’s Superior Court docket has
stated they aren’t; the Ontario Court docket of Enchantment has not dominated in its case but).
By purporting to make the conspirators chargeable for worth hikes for everybody, it
expands the affect of hurt claimed in compensation, he says.

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