Law Times

Page 12 FOCUS April 15, 2013 Law Times • Lawyer blames plaintiffs' bar for gaps in class action database Competition with fellow practitioners among reasons for resistance to filing BY Julius Melnitzer For Law Times A veteran class action practitioner says Ontario's plaintiffs bar shoulders considerable responsibility for the shortcomings of the Canadian Bar Association's national class action database. "Ontario lawyers have been very protective of their copyright on pleadings to the point of ignoring judges' directions to file with the database," says Ward Branch of Vancouver's Branch MacMaster LLP. The database, established in 2007 to help deal with issues arising from multijurisdictional class actions, contemplates plaintiffs' counsel filing pleadings and certification motions. But despite a 2011 CBA protocol reaffirming the obligation to file, a specific practice rule in Nova Scotia requiring compliance, and practice directions at the Federal Court as well as in Ontario, Alberta, British Columbia, Newfoundland, Quebec, Saskatchewan, and the Yukon, there are severe limitations in the data. "If I had to guess, I'd say that there are twice as many Ontario class actions as filings in the database would indicate," says Branch, whose publications are themselves an important source for information about Canadian class actions. The obstacle appears to lie in the competitive nature of the class actions bar, a fact that has spawned an increasing number of carriage motions of late. "There's a very real divide between plaintiffs' counsel who sometimes work together and sometimes do not," says Kent Thomson, a defence-side class actions lawyer and head of the litigation department at Davies Ward Phillips & Vineberg LLP. "So if the consequence of registering a case is that you expose your pleading to maintains, it's not easy other plaintiffs' counsel to retrieve information who mimic it or use it from the database nor as a springboard, you is it easily searchable. can understand why These considerthere would be powerations, however, don't ful disincentives to file appear to have deterred on the database." the Quebec bar. The idea behind the "The filings from database was that class Quebec are very acaction counsel could curate and the lawyers determine whether cerquite forthcoming," tain issues were already says Branch. "Quebec before a court and then also has a practice rule co-ordinate their activithat requires filing with ties. "But what happens Quebec's own database in real life is that you get those people who work 'There's a very real divide between plaintiffs' and that rolls over into together for the most part counsel who sometimes work together and the national one." When the CBA first and then you get the out- sometimes do not,' says Kent Thomson. created the database, liers and they're the probthe organization's web site touted it as lem," says Thomson. Alan Farrer, managing partner at one-stop shopping for information about Thomson Rogers, says the lawyers at his new class actions. That has clearly turned firm post to the database whenever they out to be an overstatement. And when the CBA created its national start a class action. "But not everyone at task force on class actions, which in 2011 other firms do," he notes. Farrer believes lawyers may be more gave rise to the Canadian judicial protocol eager to use the database if there were de- for the management of multijurisdictional monstrable and tangible benefits associ- class actions, its web site warned that "as carriage motions and jurisdictional disputes in ated with filing to it. "For example, if lawyers could use the national class actions become more numerdatabase information in support of settle- ous, failure to resolve the issues of duplicament or fee approval applications, that tive and competing class actions will result would be a start," he says. "It would also in the continued waste of resources for help if the database was current and gen- plaintiffs, defendants, and the courts alike." As the failure to come up with a meanerated statistical evidence of the kind ingful national database suggests, the "conthat might be helpful in a courtroom." LT Even in its current state, Farrer tinued waste" is clearly continuing. 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