Law Times

lAw Times • April 11, 2011 FOCUS PAGE 21 Which province is best for class actions? Legislation, judicial experience factor into decisions about where to litigate BY DARYL-LYNN CARLSON For Law Times al jurisdiction to initiate a class action lawsuit, there can be sub- tle limitations in the laws that can help lawyers decide where to launch a claim. For example, Ontario has up- W dated its Securities Act to make it easier for shareholders to sue the offi cers and directors of a company based on misrepresen- tation or omissions in publicly disclosed documents. Aside from that, the provinces have various subtleties related to product liability, consumer laws, and environmental matters that could direct which jurisdiction is best for launching an action. Shaun Finn of McCarthy Té- trault LLP's Montreal offi ce has taken a look at the provincial laws across the country to deter- mine the diff erences in each ju- risdiction's class action legislation and whether there's a single place that's more receptive to that type of litigation than others. So far, he has concluded that there isn't such a place. "If you look at the Canadian landscape today, there isn't a class action haven," he says. Th ere have been some signifi - cant class actions that have been decided across the country, in- cluding precedent-setting cases determined in the Atlantic prov- inces. Nevertheless, Finn says there's some advantage in select- ing certain provinces over others depending on the nature of the class action. For example, he notes that Quebec, unlike other provinces, has been somewhat more fa- vourable to environmental class actions, while mass torts tend to be more prevalent in British Co- lumbia and Ontario. Product liability class ac- tions are popular in all jurisdic- tions, while securities matters are now more attractive in On- tario, Saskatchewan, Manitoba, and Newfoundland because of amendments to the laws in each respective province. Although Quebec had pre- viously been viewed as a more plaintiff -friendly jurisdiction, Finn says some recent deci- sions, particularly at the Court of Appeal, have adopted "a more balanced and rigorous approach to the admission of evidence, certifi cation, and class description" that renders it less amenable to claims. On the other hand, Ontario had been viewed as more defen- dant-friendly but has arguably moved in a diff erent direction as a result of cases such as Mark- son v. MBNA Canada Bank and Cassano v. Toronto-Dominion Bank, according to Finn. "Th e Ontario courts interpreted the provision dealing with damages and said that it is not necessary in Ontario to establish that Untitled-3 1 hile there's no single province in Canada that serves as an ide- every class member has suff ered a damage," he says. "Th is is seen as an instrument by the Ontar- io courts to take a much more fl exible approach to class action certifi cation." In terms of initiating a na- tional class action in Canada, Finn says the province generally shouldn't be the primary factor. Instead, he emphasizes that "the plaintiff class should be drawn from all persons who suff ered the same wrong, irrespective of where they happen to reside." While any province could be a possible venue for a national class action, there could be ad- ditional benefi ts or, alternatively, disadvantages with some juris- dictions' opt-in or opt-out re- quirements. Finn notes that although Canada has a less robust Federal Court system, Ontario moved forward many years ago through cases such as Nantais v. Telectron- ics Proprietary (Canada) Ltd. Th e case suggested that Ontario hopes to become the "province of choice for nationwide pro- ceedings in Canada," he says. "According to the Ontario court, as long as proper notice is af- forded to all potential plaintiff s, a provincial court should be able to certify a nationwide class." Finn adds that in the case of Canada Post Corp. v. Lépine in 2009, the Supreme Court sug- gested that national class actions are a good forum. Lawyers still have many questions, however. "Th e time is now ripe for the Su- preme Court to explain clearly when and under what condi- tions such national or multi- jurisdictional class actions are appropriate and when they are not," Finn says. Christopher Naudie, a part- ner at Osler Hoskin & Harcourt well, judicial experience in class actions due to the sheer number of cases that have been certifi ed here is also a factor. "Ontario has been generally receptive and is becoming more receptive to more types of class actions," he says. "I think that as a result, plaintiff s may see more opportunity to bring class pro- ceedings in Ontario." While Naudie typically rep- 'If you look at the Canadian land- scape today, there isn't a class action haven,' says Shaun Finn. LLP in Toronto, says Ontario can be an ideal jurisdiction for many lawsuits, particularly following its Securities Act amendments. As resents defence clients in class actions, he notes that for mat- ters that include plaintiff groups spanning a wider scope, Ontario is a very conducive jurisdiction to certifying cross-border and international claims. "In Ontario, the courts are fl exible in their approach to cer- tifi cation," he acknowledges. As a result, some people feel that Ontario is a good place to launch a class action depending on the nature of the case. www.lawtimesnews.com 4/6/11 2:37:54 PM

• Cover
• Great Businessman
• Election Special
• Focus On Class Actions