Class actions will often address wrongs and harm that transcend the borders of a single Canadian province. A faulty medical device might be distributed across the country and wreak its harmful effects upon residents in many or all provinces. Similarly, when a public company misleads its investors about its business, those investors will almost certainly reside all over Canada.
That has led to the phenomenon of multijurisdictional class actions, which refers to a situation where class actions are commenced in two or more provinces that have overlapping classes or subject matter.
Overlapping class actions in different provinces present unique challenges and raise concerns for plaintiffs, defendants and courts alike. They have the potential to result in costly, protracted and inefficient litigation that may lead to inconsistent results, all of which is antithetical to the objectives of access to justice and judicial economy that class actions are intended to achieve.
In the absence of a direct legislative solution to the problems created by multijurisdictional class actions, the Canadian Bar Association has proposed rules directed at fostering greater coordination of those class actions. In particular, at its annual meeting on February 15, 2018, the CBA passed a resolution approving a revised “Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions and the Provision of Class Action Notice”. The 2018 Protocol is not binding or mandatory. It identifies best practices by which multijurisdictional class actions may be coordinated. It is hoped that parties to class actions will follow the 2018 Protocol and that Canadian courts will adopt the 2018 Protocol in the exercise of their case management powers where there are overlapping multijurisdictional class actions.
The 2018 Protocol builds on an earlier version of the Judicial Protocol adopted by the CBA in 2011. The 2011 Protocol sets out best practices for dealing with settlement approval and the issuance of notices in multijurisdictional class actions. The 2018 Protocol integrates those best practices relating to settlement approval and notices, and goes further in setting out best practices for the management of multijurisdictional class actions outside the settlement context.
The 2018 Protocol incorporates the following new best practices relating to the management of overlapping class actions:
- Information disclosure by plaintiff’s counsel: prior to the first case management conference in each multijurisdictional class action, plaintiff’s counsel in the action must (i) post their pleadings on the CBA’s Class Action Database, and (ii) compile a list of the names and contact information of all counsel and judges in all actions (the “Notification List”), and provide the court and all other counsel with the Notification List. Plaintiff’s counsel must update the Notification List at any subsequent conference or hearing if any changes become known.
- Judicial communication: the parties to each multijurisdictional class action may agree that the judge in their action may speak with the judge in any other action. Further, judges may communicate for the purpose of determining the most efficient process for the consideration of any motions and making any decision as to the appropriateness of any communication. The judges must advise counsel if any such communication occurs and may advise of the nature of the discussions.
- Joint case management conferences: the parties to each multijurisdictional class action may agree that the judge in their action may direct that a joint case management hearing be held with the judge in any other action, provided the other judge agrees.
- Notice of, and participation in, particular motions: if a party to a multijurisdictional class action brings a motion for a stay of proceedings or dismissal based on the existence of other actions or a motion for certification (if the class includes class members in other actions), the party must provide all judges and counsel in all actions with the Notification List and a copy of the notice of motion or application (and copies of the motion record in some cases). An order may be sought to allow counsel or the judge in any other action to participate in the motion to the extent permitted by court rules.
The 2018 Protocol is an important incremental step in the ongoing process to bring greater coordination and cooperation to overlapping multijurisdictional class actions in Canada. It remains to be seen to what extent class action lawyers and Canadian courts adopt and embrace the best practices set out in the 2018 Protocol.