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April 12, 2010

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Law Times • apriL 12, 2010 An online resource tool 1.800.263.3269 ntitled-6 1 1/28/10 4:34:45 PM Focus On CLASS ACTIONS Task force sparks controversy in Quebec New CBA group aims to address overlapping claims across the country BY ROBERT TODD Law Times A group of lawyers and judges from across the country are poised to create some certainty this year in the baffl ing world of overlap- ping multijurisdictional class actions, but the eff ort faces seri- ous opposition from some law- yers in at least one province. In announcing the creation of its national class actions task force earlier this year, the Ca- nadian Bar Association said the group of lawyers and judges would focus on the develop- ment of judicial protocols and possible legislative amendments to help bring order to identical lawsuits that spring up through- out the country. It sounds like a good idea, but the group has some lawyers steaming mad. Donald Bisson, chairman of McCarthy Tétrault LLP's na- tional class action group out of Montreal, highlights the contro- versy the CBA task force itself has generated within the Que- bec bar. Some lawyers adamantly oppose the idea of any group of lawyers discussing the issue in a national forum, he says. "I know for a fact that some attorneys in Quebec do not want to participate in any Ca- nadian bar class action panel. It's known that some of them, either on the defence or the plaintiff side, don't want to participate because they feel that the only recommendation that any Ca- nadian bar committee could say is, 'Let's have national classes or let's have some kind of accom- modation,' when the opinion of these attorneys is that it should be only provincial classes." As Bisson says, "Th e issue, it's totally in a mess now. It's very hard to predict what will happen in the near future." Task force chairwoman Syl- vie Rodrigue of Toronto, who helps lead Ogilvy Renault LLP's class actions team, suggests the name of the task force may have caused some confusion. She is well aware that, unlike the United States, Canada doesn't have a multidistrict litigation system. Th at means there's no single court here that could consolidate multiple class ac- tions fi led across the country. In light of that, the task force will concentrate its work towards the multijurisdic- tional class action issue, which creeps in when identical cases come about in more than one province. Th e issue began to take hold when British Columbia and Ontario adopted class action legislation in the 1990s, Rodri- gue notes. Quebec instituted its own law in 1978. In major class actions, such as product liability cases, separate fi lings will often arise in B.C., Ontario, and Quebec. Th e B.C. and Quebec claims would be for residents of those provinces only, while the Ontario case would be a national class excluding residents of those two provinces, Rodrigue points out. "For the defendant, you still had to go to three jurisdictions, but there was no overlap in be- tween the cases," she explains. As result, defendants hoping to settle the actions began to at- tempt to bring the three cases together into a national class. "Th is is the big problem we have," says Rodrigue. "Was it constitutional for the one court to take over jurisdiction over the residents of the other province and is it binding over the resi- dents of the other province?" Of course, there is no way for the CBA group to settle that question. Th e Supreme Court of Canada will have to take on that task when it sees fi t. (Its decision last year in Canada Post Corp. v. Lépine failed to clarify the issue). But that hasn't stopped some judges from certifying national class actions already, Rodrigue says. "Th e judges are starting to write about, 'Well, we can do it if there's a real and substan- tial connection between the members of the class and the forum,'" she says. While the judiciary has of- fered some direction in terms of the circumstances that per- mit a national class action in Canada, the academic commu- nity has been all over the board on the issue, Rodrigue notes. Th e lack of a clear constitu- tional opinion seems to have prompted the CBA task force to seek out ways for lawyers and judges to work together to make the most of a somewhat anarchic system. Examples may include protocols for hearings held through videoconferenc- ing and for judges in parallel proceedings to discuss the case. "Because of the constitu- tional problem, obviously these are guidelines," Rodrigue says. "It's not binding unless the parties are willing to submit themselves to the guidelines." Koskie Minsky LLP partner Kirk Baert of Toronto says he ORDER your copy today Hardbound • 222 pp. • 2008 • $90 P/C 0196010001 ISBN 978-0-88804-468-6 plans to bring forward a few of his own ideas as a member of the task force. One key fi x, he suggests, is the creation of guidelines for information shar- ing among counsel. "One thing I think would assist is if we had some sort of protocol or practice direction that required the defendant, when it's sued a second time — or a third or a fourth — to provide copies of those new claims to the counsel from the fi rst case," he says. A centralized registry of all Some Quebec lawyers 'do not want to participate in any Canadian bar class action panel,' says Donald Bisson. class actions in the country could also enhance commu- nication, Baert says. Th e CBA has created an online database that is "somewhat helpful but it's nowhere near complete," he notes, adding many problems that creep in late in proceed- ings wouldn't arise if judges compelled lawyers to post case details to such a database. "I also think it would pro- tect class members because it would prevent the risk of one lawyer in one part of Canada settling the case, purportedly on behalf of the country, when there are other cases pending at the same time. Waiting un- til there's a big, huge fi ght over this means hundreds of thou- sands of dollars on all sides get wasted fi ghting about motions that, if you'd had a few meet- ings between the lawyers and the courts, you might save a lot of those motions and appeals." But Bisson notes there's no easy cure for the problems sur- rounding overlapping class ac- tions. "Even for the parties, there's no clear choice," he says. "Does a plaintiff really want to repre- sent all of Canada? Do class counsel in Quebec want to rep- resent all of the class members in Canada?" For her part, Rodrigue sug- gests the bar should reserve its expectations of the task force's work. "Th e goal here is not neces- sarily to transform this into the U.S. model MDL [multidis- trict litigation] system and al- ways end up going in one prov- ince," she says. "Th e goal is to address the ineffi ciencies." LT PAGE 9 Effective Written Advocacy Canada's top practitioners, writing experts and experienced judges explain what works and what doesn't Effective Written Advocacy brings together the wisdom of Canada's top practitioners, writing experts and judges to guide you on how to write powerfully and persuasively for your audience. 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Laskin, David S tratas, Benjamin Zarnett, S onourable Justice Thomas A. Cromwell onourable Justice Stephen Goudge, tephen Armstrong *Authors' royalties will be donated to the H onourable Marvin Catzman Bursary fund.

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