class-action litigation bar is still waiting for a case that will have a
significant impact on the management of multi-jurisdictional class proceedings;
but practitioners see other trends in this sector, such as a low threshold to
class certification and conflicting law on litigants’ requirement to show harm.
“I don’t think
[Endean] has resulted in a sea change, and I don’t think
many people expected it to do so,” says Ranjan Agarwal, litigation partner at
Bennett Jones LLP in Toronto, whose practice includes class actions. When
the Endean case got up to the SCC, “it was
argued on pretty narrow grounds.”
Of the cases
that have referred to Endean since that decision was handed down,
“in none of them have you seen the courts expanding the powers of class action
judges in a significant way,” says Sandra Forbes, partner at Davies Ward
Phillips & Vineberg LLP in Toronto, who specializes in dispute resolution
and competition litigation, including class actions.
Endean upheld the principle “that
class-action legislation should be interpreted broadly and consistent with the
purpose of class action, which is to provide access to justice,” she says, and
it gave a very broad definition to the inherent jurisdiction of the court.
Court “found that even if there was a province that doesn’t have a specific
legislative provision that allows a class-action judge to make whatever orders
he or she thinks is appropriate for the conduct of the action, that even if you
don’t have that statute provision, a judge could find that power within [his or
her] inherent jurisdiction.”
A national class action
In the United States, complex class action lawsuits are governed by a
multi-district litigation system: a federal legal procedure
designed to facilitate the processing of cases such as air disaster litigation
and complex product liability suits.
though, there is no national class litigation regime, a situation one
practitioner has described as “a mess.”
to labour under uncertainty regarding enforcement of national class actions,”
says Brad Dixon, the Vancouver-based national co-chairman of the Class Actions
Group for Borden Ladner Gervais LLP. “You continue to see parties bringing
multiple settlement approval applications in multiple jurisdictions, because if
they proceed with a national class action in one jurisdiction, the application
may not ‘stick.’” The Endean approach may offer some efficiency,
says Dixon, but not a great deal and only under exceptional cases.
So, to the
extent that there are multiple class actions across the country, “you have
multiple actions, not consolidated ones,” says Eliot Kolers, head of the
Litigation & Dispute Resolution Group in the Toronto office of Stikeman
Elliott LLP. “They’re not managed by a single judge. Endean doesn’t change that.”
In typical multi-jurisdictional class action
litigation, defendants and plaintiffs agree in which province the class action
should proceed, and law firms representing the various plaintiffs and
defendants across the country will join together in representing the class or
defending the action. If British Columbia is chosen as the jurisdiction, for
example, then the Ontario and Quebec cases would stay dormant, Kolers explains,
with each group of plaintiffs represented by counsel, often at different firms
and in their own provinces.
In this scenario, says Kolers, “If there’s
something that needs national approval — let’s say one defendant settles — then
all three groups of plaintiffs, who are typically working together, will bring
settlement approval motions in each of their own jurisdictions to get it
approved in all three places before the settlement is implemented.”
hookup can link courtrooms in multiple provinces, allowing participants to see
all courtrooms simultaneously. “One counsel will take the lead, and the other
counsel in other provinces will watch on TV. It’s all being done at the same
time on the same day.” In the Endean case,
the judges heard the motion sitting together, in person, at the conference they
all happened to be attending on that day. But, says Kolers, “Until there’s a
national multi-district litigation system, a case like Endean is more of a one-off.”
In an article
penned for the National
Journal of Constitutional Law in 2010, Peter Hogg and Gordon McKee questioned whether national class
actions were constitutional. But, says Agarwal, “There may be other models that
could be adopted” that may afford more co-operation between counsel and avoid
competing class actions, stay motions and carriage motions.
Martineau, partner in the Litigation & Dispute Resolution Group of Stikeman
Elliott’s Montreal office, says he has noticed “a great deal of co-operation”
among counsel in multi-jurisdictional class action litigation over the past
decade or so. “Once litigants choose their venues of preference to go to trial,
judges in other provinces will show deference to that choice and, as the
Supreme Court has said [in CanadaPost Corp. v. Lépine], they should . . . have faith in fair treatment
[by] all provinces.”
In the end,
though, “it’s the court that will have the last word” regarding jurisdiction in
which to hear the class action, says Martineau.
In 2009’s Lépine case, the courts were “politely lectured” for failing to provide the
needed co-operation and more efficient management between the courts, he says.
That case involved two class proceedings that gave rise to a situation of lis pendens, as the Quebec proceeding had been commenced before the one in
“There was a
problem with the courts being maybe over-protective of their own citizens and
not fully confident that they will get as good a treatment in the ‘foreign’ or
other provincial court,” says Martineau. “Kudos to the courts, starting with
the Supreme Court, and lower courts for how [the SCC’s] message was received
and applied,” he says, adding that “we’re all the better” for that decision.
Although a new
Quebec Code provision, instituted at the beginning of
2016, requires Quebec courts to protect the rights
and interests of Quebec residents in multi-jurisdictional class actions
when stays of proceedings are requested in Quebec, Martineau says that the
provision is simply a “codification” of the principles that were already
applied in Quebec courts.
Today, more and more, “you will see courts
co-operating between themselves” in multi-jurisdictional class actions, he
notes. “Each judge . . . will communicate with judges in charge of a class
action” on the same matter, he says. “One judgment will have impact” and
litigants in other jurisdictions will generally abide by that judgment.
Agarwal is also noticing a “modification of
the rules” when plaintiffs co-operate in class actions. For example, he says,
Ontario has a cost regime whereas British Columbia does not, and plaintiffs may
decide to bring an action in Ontario but stipulate that it be a no-cost regime,
as in B.C.
counsel, Agarwal says, “We’re seeing a lot of co-operation among plaintiffs’
lawyers, and the result is everyone’s come to an uneasy alliance.” But there
remain pockets of non-co-operation among plaintiffs’ lawyers, where defendants
face class actions on the same issue in more than one common-law province, he
“I think now defendants might . . . use the
rules of the court and say, ‘I’m going to become a more aggressive party so
that my client is only facing one action as opposed to three or four actions.’”
Look for defendants’ counsel asking the
court to make rulings “as to how this is going to operate” if plaintiffs aren’t
co-operating with each other, he says.
“I think we may be in for a little more
aggressive manoeuvering by defendants as time goes on,” with defendants moving
on their own to stay actions or moving under s. 6 in Saskatchewan’s Class
Actions Act for an order for direction in how to manage the actions, in cases
where plaintiffs are not co-operating with each other across jurisdictions.
Other class action litigation issues of
concern to defence counsel are not specifically multi-jurisdictional.
Low bar to
The bar to certification
is low, especially in Ontario and British Columbia, say Kolers and others.
“We don’t feel
that the plaintiffs are necessarily meeting the evidentiary thresholds that
they should be required to meet, in competition cases, for example,” he says.
“It sure would be nice to have a [multi-district litigation system] system, but
[it] doesn’t seem likely [that] we’ll get one any time soon. What we’re going
to see is more of staying motions and procedural fights.”
calls it “a pendulum effect. . . . The certification procedure isn’t intended
to be a procedure on the merits, but [there] should be some basis in fact by
the claim itself,” he says. “The pendulum is swinging to a lower and lower
to show harm
v. Sony Corporation
involved an appeal from a B.C. Supreme Court decision allowing certification of
a class action on behalf of both direct and indirect purchasers of optical disc
drives. In the decision of the British Columbia Court of Appeal, handed down in
August, the court decided on several certification matters for class actions
that could have wide-ranging effects on competition class actions commenced in
One finding was that there was no
requirement to show harm to all members of a class, taking a broad
interpretation of the Supreme Court of Canada’s decision in 2013’s class
action trilogy holding that the commonality requirement is satisfied where
the plaintiffs present a plausible method to demonstrate that an overcharge
reached the indirect purchaser level of the distribution channel, not
each individual withinthat
There is an
outstanding application for leave to appeal to the Supreme Court on some of the
issues raised in the case, says Forbes.
“But the debate
is what did [then Supreme Court of Canada] Justice Rothstein mean when he said
in [Pro‑Sys Consultants Ltd. v. Microsoft Corporation] that the plaintiffs have to show they
have a methodology that can prove damages on a class-wide basis?” asks Forbes.
In a case where there are various levels of purchasers, both direct and
indirect, as are often seen in competition and anti-trust cases, he says, “Do
you have to show that harm is passed on to the indirect purchaser level of the
class or does the plaintiff have to show some sort of methodology that the
trial judge can use at trial [as to] who in this class was harmed and belongs
in the class and who wasn’t harmed and shouldn’t belong to the class? What has
to be shown at certification?”
It’s a “live legal issue,” says Kolers, as part of the
current conflict between British Columbia and Ontario law (B.C. has said that
indirect purchasers’ claims are valid, whereas Ontario’s Superior Court has
said they are not; the Ontario Court of Appeal has not ruled in its case yet).
By purporting to make the conspirators liable for price hikes for everyone, it
expands the impact of harm claimed in compensation, he says.