16 | LEXPERT • December 2016 | www.lexpert.ca
CLASS ACTIONS
Each Canadian province has its own class-action
statute, which means US clients may still face five
or six overlapping class actions, each one bogged
down by interlocutory motions and appeals
by Sandra Rubin
PHOTO:
SHUTTERSTOCK
INEFFICIENT
INCONSISTENT,
THE MOST IMPORTANT thing Americans need to know about Canadian class actions
is that the legal landscape isn't always pretty. Especially when it comes to securities suits, it can be
fractious, confrontational, inefficient and expensive. Canada's Federal Court hears class actions
but only those limited to federal statutes such as tax and intellectual property. Otherwise, class
proceedings fall to provincial courts.
Each province and territory has drafted and administers its own class-action statute and, while
they often line up, they don't always mesh. Canada has no equivalent to the US multidistrict litiga-
tion (MDL) system for similar civil actions in different districts, so US corporations hit with Cana-
dian class-action claims may find themselves defending multiple lawsuits — some using differing
legal arguments. Settling means trying to negotiate with several different sets of plaintiffs' lawyers
across the country, who don't always play nicely together; going to trial, meanwhile, presents the
risk of conflicting decisions. In other words, it's a bit of a mess.
The Canadian Bar Association, noting increased frustration "by the jurisdictional overlap
caused by provincial class actions claiming to represent national classes," struck a task force about
five years ago to try to establish a protocol similar to the MDL. It involved high-profile members of
the judiciary as well as the plaintiff and defense Bar. The result? A watered-down Judicial Protocol
for the Management of Multi-Jurisdictional Class Actions that focuses on the approval and admin-
istration of settlements. But an actual protocol for dealing with the filing of overlapping suits? A
big fat nada. "There was no consensus as to how we were going to solve this," says Sylvie Rodrigue,
the task force chair. "Ontario residents don't necessarily want to be told, 'Your case is going to be
heard in Saskatchewan' when they have a Constitutional right to have their case heard in Ontario."
At the same time, she says, the judiciary is frustrated because "they feel like the Bar doesn't want
to be managed, doesn't want to be told where the case is going to proceed." As for the Bar, she says,
