Co-author: Rory Wasserman (Student-at-law)
Osmun v. Cadbury Adams Canada Inc., 2012 ONSC 3837, marks the first use of Canada's Multijurisdictional Class Action Protocol.
The Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions (the "Protocol") was developed in August 2011 by the Canadian Bar Association (the "CBA"), in consultation with the Canadian judiciary and the legal profession, and has been approved as a best practice by the CBA.
In Osmun v. Cadbury Adams, the Hershey Company sought certification and settlement approval of three parallel class actions brought against it in Ontario, British Columbia and Quebec for allegations of price-fixing in the chocolate industry. Class Counsel also sought approval of their fees.
Courts of each jurisdiction used the Protocol to coordinate and conduct the certification and settlement approval hearings. The courts each issued substantially similar case management orders, which directed approvals to be sought under a combined title of proceedings and hearings to proceed concurrently before all courts by joint video conference or teleconference.
On May 28, 2012, the Hershey certification and settlement approval hearing was held by way of a joint video conference before the Ontario, British Columbia and Quebec courts. Submissions on certification and settlement approval were made by Class Counsel in Toronto. Submissions on approval of counsel's fees were made by Class Counsel in Vancouver. During the hearing, questions were addressed to counsel from the bench in any of the three jurisdictions. Fee approval for Quebec counsel was determined on a separate hearing.
Following submissions, counsel for all parties advised that they had no objection to the judges discussing the motion by conference call without counsel being present. This took place within ten days of the hearing and there was no difference of opinion between the judges concerning the disposition of the motions.
The motions were granted and the approvals were obtained. The courts and counsel agreed that the adoption of the Protocol and teleconference resulted in an efficient hearing.
Just two years earlier, the Cadbury and ITWAL settlement approval hearings in this action were heard without the benefit of the Protocol (2010 ONSC 2643, 2010 BCSC 816, and 2010 QCCS 4454). The hearings were conducted at different times in Ontario, Quebec and British Columbia. At each hearing, submissions were made to the court and the approval decisions were made without discussion of the judges of the other courts.
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