The current process for multi-jurisdictional class action lawsuits lacks inter-provincial co-ordination, effective case management and creates delays and wastes judicial resources, say lawyers with three Ontario firms that act for plaintiffs. Three firms have asked the Canadian Bar Association to streamline it.
Representatives from Sotos LLP, Siskinds LLP and Koskie Minsky LLP authored the submission to the CBA, which was produced in response to the notice of consultation from the CBA’s national class actions task force, created in October.
“This is the opportunity. People have been waiting for something to come out of the machine to help deal with the burgeoning problem of multi-jurisdictional class actions. It just has been vexing the bar and the judiciary for many years,” says David Sterns, partner at Sotos LLP.
Sterns says Canada’s provincially based judicial system means no one province can cede jurisdiction or usurp another province by overruling them on a case in its jurisdiction. When a national class action is filed in several provinces, instead of all class members getting behind one firm in one court, he says, they’re spread out in respective provinces. He says this means more law firms are hired, more fees are paid and more courts are dealing with the same case. The defendants are then expected to fight the case in multiple provinces at once.
Sterns says the system needs national co-ordination and the designation of one court to take the lead. The status quo also limits access to justice, the three firms’ submission states.
He says when the same class action is launched by different claimants of the same class in multiple jurisdictions, the overall fees are higher and overall payout lower because of the duplication of legal services. The higher cost and lower benefit can discourage class members from participating in class actions, the firms wrote in their submission.
Both plaintiffs and defendants are in agreement that the current system does not suit their interests, Sterns says.
Rob Gain specializes in commercial litigation for Koskie Minsky LLP and says that having no co-ordinated approach to national class actions wastes the court’s, claimants’ and defendants' time.
“It’s a lot of time and expenses for the court,” he says. “It also takes up a lot of plaintiff lawyer time having to go from province to province, having to deal with these issues and also the defendants are facing multiple overlapping class actions in different jurisdictions and have to fight on many different fronts and it’s not an efficient or effective way to litigate a case.”
The task force had developed a draft protocol for multi-jurisdictional class actions. But the firms’ submission stated it did not go far enough in terms of case management. Before that, the CBA proposed another protocol in 2011, which Sterns says had a proper case management function that designated one court to manage the case, which was not included in the more recent draft protocol.
“The 2011 protocol had a case management set up so that the courts could designate one court to effectively manage the case,” says Sterns. “It didn’t mean that the other courts had no involvement and it didn’t mean that any court was ceding its jurisdiction in favour of another, but it was a way to designate one court to take the lead, if you will, with the other courts to follow.”
The 2011 protocol was never adopted.
Linda J. Visser, a partner at Siskinds LLP, says Canada’s constitutional framework has made Canada’s experience with multi-jurisdictional class actions different from those in the United States, where they have the multi-district litigation process.
With the MDL, when a class action is pursued, there will be a hearing and certain firms will get carriage of the action and the case management is done by one court. The firms’ submission to the CBA asks that a similar process be established in Canada.
“In the U.S., there doesn’t seem to be that same issue or they’ve overcome that issue some time ago,” says Visser.
Duplicative class actions can result in conflicting judicial decisions, for example, earlier this year when Purdue Pharmaceuticals agreed to settle with claimants who were affected by OxyContin addiction. Purdue manufactures OxyContin and was sued for deceptively marketing the painkiller.
The settlement was approved in Ontario, Quebec and Nova Scotia but a Saskatchewan judge chose not to approve, asking for more information. The decision by Court of Queen’s Bench Judge Dennis Ball stalled the case and so put a hold on compensation for claimants.
This is the type of conflict and delay that Visser says she hopes the CBA remedies.
“Anything that the courts can do to make this a more efficient process and more timely resolution of these claims is a good thing. Class actions can go on for many years and part of the theory of class actions is to provide access to justice and in doing that you need to provide timely access to justice,” says Visser. “So to the extent that processes can be implemented to make more timely access to justice is a good thing from the courts perspective and the parties’ perspective.”