Law Times

Page 10 April 18, 2016 • lAw Times www.lawtimesnews.com FOCUS Untitled-2 1 2016-04-12 2:57 PM CBA goes 'back to the drawing board' Tackling the national class action conundrum BY JIM MIDDLEMISS For Law Times T he Canadian Bar As- sociation's class action task force is once again reconstituting in an attempt to find some sort of compromise to establishing a protocol for managing multi- jurisdictional class actions. Sylvie Rodrigue, chairwoman of the task force and a class ac- tions lawyer at Torys LLP in To- ronto, says the Canadian Judicial Council has asked the CBA to "go back to the drawing board." In 2011, the task force issued a watered-down version of its Judicial Protocol for the Man- agement of Multi-Jurisdictional Class Actions, which focused on the approval and admin- istration of settlements. What was missing was a protocol for dealing with the filing of suits in overlapping jurisdictions. "We weren't able to get con- sensus on some type of man- agement process for contested cases," says Rodrigue. "A little bit has changed and everybody thought it was worth another attempt," so she has been busy recruiting new members to the task force. The efforts come at an inter- esting time. The Supreme Court of Canada is about to rule on two cases dealing with the ju- risdiction of judges to hear cases outside their province. The top court has also noted the challenge courts face sorting out national class actions and called on provincial govern- ments to act, a charge that has fallen on deaf ears. In Canada Post Corp. v. Lepine, the top court wrote, "The provincial legislatures should pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional dis- putes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Ca- nadian legal space. It is not this Court's role to define the nec- essary solutions. However, it is important to note the problems that sometimes seem to arise in conducting such actions." In the face of a lack of action by provincial governments, the task force will once again try to find common ground, but it like- ly won't be easy. The major sticking point last go-around, says Rodrigue, was the ability of judges from different jurisdictions to talk among themselves about cases without the presence of counsel. The judges wanted the ability to speak among themselves similar to the way appeal court judges do, while elements of the bar were uncomfortable with that. Rodrigue says there will be some new faces around the table representing judges. Gone, for example, is former Ontario chief justice Warren Winkler, who will be replaced by Paul Perell. Saskatchewan will also have new judicial representation. "I am not sure much has changed from the bar's perspec- tive," she says, but she's hoping to see some "f lexibility" in discus- sions. "The crux of the problem," she says, "is not having mul- tiple cases; the problem is hav- ing multiple national cases that have overlapping classes. It will be a protocol for management of multi-jurisdictional class ac- tions." The challenge of competing class actions in Canada can be traced to our federal-provincial roots, notes Barry Glaspell, a class actions defence lawyer at Borden Ladner Gervais LLP in Toronto. "Civil rights is a provincial power, class actions are provin- cial," he says. So the class action bar faces the same challenges that other industries such as the securities and investments face, he says. In fact, in some instances, a national class can be a detriment to litigation, suggests Glaspell. Take product liability cases. "If they are certified nation- ally, there are a lot more third- party issues," he says. There is the challenge of differing laws across provinces and eviden- tiary challenges in terms of witnesses and medical records. "There is a lot of logic to having them provincial, just in terms of running the cases," he says. That contrasts with cases in- volving purely economic loss, which are easier to assess on a national basis, he says. There are also problems around limitation periods across provincial boundaries, and simply establishing a sub- stantial connection to a prov- ince can be problematic. Though, he notes from a defence perspective, it's easier to deal with a national class in terms of settlement. "Defendants prefer to have a national settlement and global peace," he says. LT Sylvie Rodrigue says she has been busy recruting new members to the CBA's class action task force. Defendants prefer to have a national settlement and global peace. Barry Glaspell

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