Law Times

PAGE 12 FOCUS September 5, 2011 • Law timeS draft judicial protocol on multi- jurisdictional class actions has sent a large slab of the proposal back for revision. Guidelines that were sup- posed to reduce procedural confusion when there are over- lapping class actions in two or more provinces have created a conundrum of their own. After the CBA task force on the issue released the initial protocol in June, the results of the subse- quent nationwide consultation showed there was strong opposi- tion to certain aspects of it. "In general, the protocol was very well received," says task force chairwoman Sylvie Ro- drigue of Norton Rose OR LLP. Rodrigue notes the proposals included three types of provi- sions. "Th ere are notifi cation Back to drawing board for multi-jurisdictional protocol A BY JUDY VAN RHIJN For Law Times n unexpectedly adverse reaction to the Cana- dian Bar Association's provisions that will ensure that everyone is aware of parallel proceedings," she says. As a re- sult, it will be mandatory to fi le pleadings on the CBA class ac- tions database; advise the court on the fi rst appearance of the existence of parallel proceed- ings; and provide notice to counsel in those matters at ev- ery step of the way. tweaks to allow the judges to play with the wording to com- ply with their own legislation," Rodrigue points out. Th e third set of provisions — the ones that proved to be much more controversial — re- late to multi-jurisdictional case management. Currently, Canada has 13 ju- risdictions and no mechanism Peter Griffi n of Lenczner Slaght Royce Smith Griffi n LLP notes that jealousy over jurisdiction is also evident in the courts. "What can happen is that courts can be a little at cross purposes. Th ey are nec- essarily protective if they feel another court is usurping their jurisdiction. For example, when Ontario has certifi ed a Cana- We have to be careful with every so-called procedural or administrative decision. They create different aggregate risks for defendants that didn't exist before. "Th ose provisions were unani- mously accepted," says Rodrigue. Th e second group of provi- sions dealing with settlement approval orders will ensure that every province in which the case is fi led uses the same docu- ments; allow for one hearing by videoconference with all of the judges sitting at once; and spec- ify what the notice to the class members should include. "Th at was all accepted with some for co-ordination. As Robert Bell of Borden Ladner Ger- vais LLP points out, Canada has a diff erent constitutional makeup than, for example, the United States, where multi-ju- risdictional panels are a reality and work well. "Th e provinces have their own areas of consti- tutional authority that include the courts and they respond negatively when there's a threat to their autonomy." da-wide class while in Quebec there is a Quebec-only class, the judge in Quebec takes the view that Ontario doesn't have juris- diction over the Quebeckers." Finding out what's possible under Canada's constitutional makeup proved to be a chal- lenge for the task force. Th e solution proposed in the draft protocol was that case manage- ment judges should deal with scheduling issues only and not decide anything substantive. "Th ey would not hear a certi- fi cation motion or anything of a jurisdictional nature," says Rodrigue. "Th ey would en- sure that the cases proceeded smoothly and that there be communication." Th is section of the protocol sparked signifi cant opposition. Th e general feeling among the bar was that the judges would be deciding substantive matters through de facto means by sched- uling where certifi cation hear- ings will take place fi rst. "Th ey said that did, in fact, aff ect rights and that it was an improper del- egation of power from a provin- cial judge to an out-of-province judge," Rodrigue notes. Bell agrees with that position. ACCESS THE LATEST RULES OF COURT FROM WHEREVER YOU ARE ONTARIO ANNUAL PRACTICE 2011-2012 THE LATE HONOURABLE JUSTICE JAMES J. CARTHY, W.A. DERRY MILLAR, AND JEFF G. COWAN Gain a solid understanding of Ontario's civil and administrative procedural law with the Ontario Annual Practice 2011-2012. This one-stop resource gives you everything you need for your civil litigation practice, including the most relevant case law personally selected and summarized by leading experts. 1. The main volume is a single volume with the Rules of Civil Procedure as well as the most pertinent Acts including: the Courts of Justice Act, Evidence Act, Limitations Act, 2002 and the Class Proceedings Act, 1992, as well as other legislation, with annotations of the most relevant case law. 2. The Forms and Table of Cases volume provides you with easy access to the essential forms. On Subscription ORDER # 804537-63474 $92 Hardcover + Softcover + CD-ROM + Mobile Version June 2011 Approx. 1898 pages (Hardcover) approx. 848 pages (Softcover) 978-0-88804-537-9 Multiple copy discounts available One time purchase ORDER # 804537-63474 $97 Hardcover + Softcover + CD-ROM + Mobile Version June 2011 Approx. 1898 pages (Hardcover) approx. 848 pages (Softcover) 978-0-88804-537-9 Multiple copy discounts available AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.canadalawbook.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. 3. The CD-ROM — contains the full text of the 2011-2012 edition, as well as Word fillable forms. 4. Mobile Version includes all Rules and Case Annotations, Practice Directions and the text of several key statutes. e-Notes — FREE monthly electronic supplements containing the most recent reported and unreported cases with links to the full-text judgments, as well as legislative changes as they become available. "We have to be careful with every so-called procedural or adminis- trative decision. Th ey create dif- ferent aggregate risks for defen- dants that didn't exist before." Griffi n views the matter in the same light. "If they say you have to go ahead in province X, that's quite a substantive issue. It may not be wonderful for the defendant and it may be very good for the plaintiff ." According to Rodrigue, there was also alarm at the absence of an appeals process. "Say there are fi ve cases running, the parties apply to have the protocol used, and there is court-to-court com- munication in the absence of the parties. If one party is not happy with the decision, how do you appeal? Do you appeal from the panel? And which province do you appeal in?" Th e Advocates' Society also made submissions that there should be criteria for the judges to look at when making their decisions and referred the task force to the recent amendments to the Alberta Class Proceed- ings Act. "It's easy when people get along," says Griffi n, fi rst vice president of Th e Advocates' So- ciety. "You don't need a protocol. But when people are trying to get a procedural or substantive advantage, it's useful to adopt some concepts of what happens in inter-court communication." In the meantime, the protocol is moving forward by degrees. On Aug. 13, the CBA council approved the notice and settle- ment sections as well as Ameri- can Bar Association protocols for cross-border communication. Rodrigue hopes provincial chief justices will approve the guide- lines immediately so that parties can start using them. Still, she predicts there will CANADA LAW BOOK® very likely be an amendment in February containing the case management provisions. "We are starting with a constitutional opinion on those provisions. If the answer is grey or positive, we will move forward with the re- vised version. We will fi ll up the gap in terms of appeals and pres- ent it to the CBA council in Feb- ruary. It might need a test case to decide if it's constitutional. Eventually, we hope the protocol will be put into the rules of prac- tice of each province." Untitled-4 1 www.lawtimesnews.com 11-08-31 10:19 AM

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