Lexpert US Guides

18 | LEXPERT • December 2016 | www.lexpert.ca CLASS ACTIONS IN CANADA, ANY plaintiff hoping to bring a class action must get certification — a long and expensive stretch with the potential for interlocutory motions galore. When it comes to sec- ondary-market suits, the lion's share are argued in Ontario, which as home to the Toronto Stock Exchange is equivalent to the Southern District of New York. In Toronto, lawyers involved in class actions can get a motion date within two weeks. After that, however, there's also the inevitable appeal to the divi- sional court, and there it can take six to nine months to get a hearing date, says Joel Rochon, who heads the class- action group at Rochon Genova LLP in Toronto. After that decision, the losing side often turns to the appeal court, delaying things again by many months. And whoever comes out on the wrong side of the appellate de- cision may seek leave to be heard by the Supreme Court of Canada. It can be two to three years to resolve a single inter- locutory motion, says Rochon. "You're talking real time." Even the judiciary appears concerned. Justice Edward Beloba- ba, one of two Ontario Superior Court justices who hear class actions in Toronto, said in Crisante v. DePuy Orthopaedics that in the world of certification motions, "excess appears to be the norm" in everything from time spent and the volume of material filed to the number of days scheduled for the oral hearing and the "over-litigation of most issues." Rochon believes that could change thanks to a 2014 Supreme Court decision, Hryniak v. Mauldin, which makes it easier for motion judges to order summary judgment. "It's only now start- ing to really work its way through the system and in creative ways that I've never seen before in complex securities cases." While a motion for summary judgment cannot be filed before certifica- tion hearings, Rochon says he's seeing counsel increasingly ask class-action judges to hear a summary-judgment motion at the same time as certification arguments. That allows counsel to in- troduce a lot more evidence supporting their position — affidavit evidence, documentary evidence or even oral evidence — before certification is decided. Rochon says this kind of hybrid summary-judgment/trial technique really opens the door to moving class actions forward more quickly. "I see a bit of a trend developing with the cases I'm involved in where both plaintiffs and defendants are saying, even in a complex-facts situation, 'Why don't we just throw this up to a summary-judgment motion?'" With clients demanding flat-fee pricing or success-fee arrange- ments of their defense firms, and the millions of dollars plain- tiffs' firms can spend to carry a single case, it's not hard to see why speeding things up would be a welcome development. Ontario, like the majority of Canadian provinces, is a loser-pays regime, which means plaintiffs' firms often have to indemnify their lead plaintiff in order to proceed. Alan D'Silva, a class-action defense litigator at Stikeman El- liott LLP in Toronto, says some recent "significant cost orders" against plaintiffs, "most of them presumably paid for by the law firms or whoever is funding them," have the potential of putting a chill on new actions being started. He thinks the cost awards will also impact the enthusiasm of third-party funders because "they probably also have to be wary of developments on the cost front." "some members took issue with giving judges the right to talk to each other outside coun- sel's presence" about jurisdiction. A mess — and one that means US clients could still face five or six overlapping class actions. That's why the Canadian Judicial Council came back to Rodrigue, a class-action defense litigator who leads the Montréal office of Torys LLP, last year and asked her to reactivate the task force and take another stab at coming up with a protocol. The mandate is to look at why the first attempt failed and try to come up with one that sells. Tough job — one that seems unlikely on so many levels it's hard to know where to begin. While the defense Bar would love to be able to defend a single national suit, it's difficult to imagine there are many judges chomping at the bit to give up their right to decide a case under the law of their own province. It's not even always possible. Take a case involving Québec, Ontario and Saskatchewan. The same case heard in Québec will likely not receive the same decision, because the law itself is differ- ent in these jurisdictions. Québec is an outlier, the only province under which civil mat- ters are regulated by French heritage law, so Rodrigue says Qué- bec task force members "don't see the point of having this panel of judges for Constitutional reasons." In fact, the province recent- ly made national class actions more difficult, bringing in a new provision restricting a judge's ability to use his or her discretion to stay a Québec case and attorn to the court of another province in order to create a national class. As for plaintiffs' counsel, they present an entirely different challenge. Under a national protocol, scores would be expected to just walk away from potential fees and surrender to competing counsel in another jurisdiction — counsel they see as less capable in a jurisdiction they may feel has less favorable laws. Would they fight it? Heck, yes. Rodrigue, who is also co-chair of the International Bar Association's Multi-jurisdictional Class Action/Collective Redress Working Group, is asked if, all things considered, she's optimistic about the chances of creating a Cana- dian protocol this second time around. There's a slight pause. "I don't know," she admits. "I don't think we're going to reach the point of having only one. … I often say to our US counsel that Canada is where the US was 30 years ago." KIRK BAERT Koskie Minsky LLP "THE COURT MADE clear [the CPA provision] isn't a voodoo provision only for when you fulfill 97,000 other criteria: it's there to be used."

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