Cross-border class actions raise due process and litigation
preclusion issues of significance to United States counsel seeking
to either implement multi-jurisdictional settlements or to select
the most favourable venue for trial. A Canadian Bar Association
Task Force, prompted by concerns arising from overlapping
cross-border class actions, recently published a Judicial Protocol,
the goal of which is to have a single Canadian judge empowered to
make binding case management orders. While the immediate intent is
to coordinate and sequence class action proceedings and settlements
across Canada, the Judicial Protocol is also intended to work
seamlessly with two American Bar Association class action protocols
addressing notice issues and court-to-court communications.
In Canada, class actions generally fall under provincial
jurisdiction – nine provinces have similar but by no
means identical class action statutes. Provincial superior courts
in several provinces can be seized of the same type of class action
issue at the same time – claims frequently purport to
cover plaintiffs in multiple provinces. Historically, conflicts
arising from such overlapping class actions have been resolved by
class counsel usually on a consensual basis, good offices and
support being afforded by Canada's provincial class action
judges. The Ontario court in particular has a 15 year history of
permitting national classes, whether for litigation or settlement
purposes, jurisdiction usually based on the defendant's
presence or consent. The Supreme Court of Canada recently
acknowledged that national classes litigated within one or more
provinces are sometimes necessary, and encouraged rules to be
The Judicial Protocol seeks to partially fill the gap noted by
the Supreme Court. It does not provide a mechanism to determine
jurisdiction, or class counsel's carriage of claims on a
national basis. Nor does it create the equivalent of an MDL panel,
with power to assign pretrial matters to a single judge.
Rather, the Judicial Protocol provides for counsel notification;
sequencing orders by a single case management judge; and
coordinated settlement approvals. Some of the details of each of
these three components follow:
Notice: The notice protocol is designed to
facilitate class counsel being apprised of related class
proceedings involving the "same subject matter".
Case Management: Courts are to communicate for
the purpose of coordinating progress of their respective class
actions and a "multijurisdictional case management judge"
is to be selected, responsible for ensuring motions in each court
are scheduled to avoid conflicting decisions – wherever
possible. Jurisdiction and certification issues remain with each
separate provincial superior court, and are subject to differing
appeal routes in each province. The proposed case management
protocol is likely to prove controversial; the power of one
provincial superior court judge to delegate case management and
settlement administration powers to a judge in another province is
new constitutional territory.
Settlement Approval: The Judicial Protocol
contemplates a joint cross-border hearing to approve settlements,
essentially in accordance with and to formalize current class
action practice. Cross-border settlement approvals are presently
implemented on a consensual basis, taking into account a number of
practical factors. In most cases, national settlements have been
approved by one, two or three provinces. In a handful of cases,
national settlements have been approved simultaneously in several
provinces. The Judicial Protocol seeks to shift practice in that
Comments have recently been received on the Judicial Protocol,
which is on the agenda for discussion purposes at the CBA National
Convention in August 2011 at Halifax, Nova Scotia.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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