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
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.
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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