Law Times

Law Times • apriL 2, 2012 FOCUS PAGE 13 BY JUDY VAN RHIJN For Law Times dictional class actions. Con- stitutional questions, conflicts between courts, and the impli- cations that even administrative decisions have for substantive matters make resolving large disputes that cross provincial boundaries a prickly path for policy-makers to navigate. In 2011, the Canadian Bar As- L sociation tackled the issue with a draſt judicial protocol that set out best practices as well as notice and settlement provisions for the management of multijurisdic- tional class actions. It also includ- ed mechanisms for co-ordination through a single case manage- ment judge to oversee scheduling in overlapping actions and settle- ment approvals. These provisions brought such a negative response that the coun- cil of the CBA ended up approv- ing the protocol without those sections included. The main con- cerns were that judges couldn't properly delegate jurisdiction to a counterpart in another province and that the protocol was silent on which court would hear an appeal of a case management order. At the time, task force chair- woman Sylvie Rodrigue said the group had listened to the feed- back and removed the case man- agement provisions. That leſt the issue of who's going to have car- riage of class actions when there are multiple matters unaddressed. At that stage, the plan was to issue a revised draſt of the case manage- ment protocols for further con- sultation, but the task force has now abandoned that approach. "We weren't able to bring the judiciary and the bar together on case management," says Rodrigue. "So we are moving to Phase 2, that itigators and court ad- ministrators continue to struggle with the issue of managing multijuris- is, legislative amendments. That is a long-term project because legis- lation needs to be addressed on a province-to-province basis." Rodrigue favours targeting specific issues like carriage mo- tions because they're easier to get through the legislative process. "The message is that rather than attacking the whole problem of national classes and multijurisdic- tional overlapping classes, we will target specific bits," she says. But until there's progress on this front, problems associated with class actions filed in multiple prov- inces will still require consider- ation on a case-by-case basis. A co- ordinating judge in one province and the U.S. concept of a judicial panel to handle overlapping ac- tions no longer appear to be viable options. In the meantime, frustra- tions are likely to grow. "The comments we received on the protocol showed that many practitioners are concerned over the time it takes for plaintiffs' coun- sel to move on when they can't agree," says Rodrigue. "We recently saw this in the Sino-Forest case." In the Smith v. Sino-Forest Corp. carriage motion on Jan. 6, four law firms were rivals for the car- riage of a class action against the company to recover losses alleged to be in the billions of dollars aris- ing from a spectacular crash in the value of its shares and notes. Superior Court Justice Paul Perell described the law firms seeking carriage as competent and experi- enced, yet they were unable to re- solve the dispute. Koskie Minsky LLP was ultimately successful. In his ruling, Perell described the process related to the current carriage motion. "First, the rival law firms that are seeking carriage of a class action extoll their own merits as class counsel and the merits of their client as the rep- resentative plaintiff. During this step, the law firms explain their tactical and strategic plans for the class action, and, thus, a carriage Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected 82 Scollard Street, Toronto, Canada, M5R 1G2 (416) 921-7997 ext. 225 or srball@82scollard.com Contact Stacey Ball at web: www.staceyball.com STACEY STEVENS | DAVID MACDONALD | MICHAEL BENNETT Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com ThomsonRogers_LT_Jan9_12.indd 1 www.lawtimesnews.com all_LT_Nov7_11.indd 1 11-11-08 11:44 AM motion has aspects of being a casting call or rehearsal for the certification motion. "Second, the rival law firms submit that with their talent and their litigation plan, their class action is the better way to serve the best interests of the class members, and, thus, the court should choose their ac- tion as the one to go forward. No doubt to the delight of the defendants and the defen- dants' lawyers, which have a watching brief, the second step also involves the rivals hard- heartedly and toughly review- ing and criticizing each other's work and pointing out flaws, disadvantages, and weakness- es in their rivals' plans for su- ing the defendants." Class actions lawyer Har- vin Pitch believes the process needs reform. "It's a total, com- plete, and utter mess," he says. "Those of us who do this work are running into this all the time. Where there's a rogue, it's like the Wild West." Pitch agrees that legislative re- form is the only way to tackle the problem. "Where there's a will, province, or at least those that have active class action bars, should adopt uniform statutes that provide that where there are competing matters, a panel of judges should determine carriage. "There will have to be a judge from each province where an ac- tion has been commenced and a third judge, if necessary, selected by, say, the chief justice of Al- berta," he says. "They then decide where it's going to be held and their decision will be appealable like any other decision." Pitch recommends that the 'We weren't able to bring the judiciary and the bar together on case management, so we are moving to Phase 2, that is, legislative amendments,' says Sylvie Rodrigue. there is a way to fashion it. It is definitely doable if there's incen- tive for the provinces to do it. The lawyers care about it and the judg- es are aggravated by it, so there should be an incentive." Pitch suggests that each committees that deal with uni- formity of legislation across the provinces should be involved. "In matters such as mortgages and goods that come under the Personal Property Security Act, they try to have uniform legislation to make things con- venient for multinational com- panies. Class actions require the same approach." This, of course, precursors the even more complicated prospect of international class actions, which no doubt will be a growing issue in the future. LT TRUST you're putting your reputation on the line. It's all about trust well placed. 12-01-04 2:56 PM Bid for case management of class actions fails Multijurisdictional matters

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