www.lexpert.ca | LEXPERT • December 2014 | 13
CLASS ACTIONS
ILLUSTRATION
BY
MIGUEL
MONTANER
APPEAL FOR CLASS ACTIONS
A GROWING GAP between the US and Canada in class-action practice, proce-
dure and substantive law threatens to overwhelm an already overburdened Canadian system
by potentially ensconcing Canada as the North American jurisdiction of choice for initiating
certain species of cross-border class actions.
"We have a very unique system here, in which plaintiff s don't necessarily face the same
hurdles that they face in the US," says Paul Martin in Fasken Martineau DuMoulin LLP's
Toronto offi ce. "American counsel are starting to understand these diff erences and ponder
the opportunities."
As things stand now, a substantial portion of Canada's class-action docket falls into the
"copycat" category. Cases are initiated in the US and imitated in Canada. e US proceedings
drive discovery and settlement negotiations. Much of the time, Canadian proceedings remain
on relative hold awaiting progress south of the border. What all this means is that US courts
frequently bear the brunt of the administrative and other burdens of class-action proceedings.
But this could change for a very fundamental reason: in many ways, Canada has become
more class-action friendly than the US.
To begin with, the US has stricter pleading standards that promote an emphasis on pre-certi-
fi cation disposition. "Canadian courts are engaged in an interesting and terrifying race to
lower the certifi cation standard to the absolute bottom," says Jim Sullivan in Blake, Cassels &
Graydon LLP's Vancouver offi ce.
e US also approaches expert evidence very diff erently by subjecting it to rigorous analysis
at an early stage.
"Canadian courts have repeatedly said that they will not engage in a battle of experts at the
certifi cation stage, while US lawyers are testing methodology and tearing experts apart very
early in the proceedings," Martin says.
Canada is increasingly seen as the jurisdiction
of choice for cross-border class actions
BY JULIUS MELNITZER
CANADA'S
