Law Times

PAGE 12 FOCUS September 8, 2008 • Law times country, too much justice becomes too much of a good thing. Paral- lel actions create uncertainty for counsel and judiciary with respect to the size and composition of the class, and members often become subject to conflicting court judg- ments. There's a growing consen- sus that new attitudes and systems are needed to streamline the field. Class action law in Canada was traditionally practised in three provinces: Ontario, Quebec, and British Columbia. Ontario had a long tradition of embracing non- residents in its classes, while Que- bec and British Columbia limited their class members to residents only. In recent times, with new legislation and Supreme Court of Canada direction, the field has been thrown wide open, so that any province or territory can become a class action player in a game where the rules are lagging behind the practice. According to Rodney Hayley, hen class actions on similar issues are run- ning all across the Meeting the multijurisdictional challenge W Growing consensus that new attitudes and systems needed BY JUDY VAN RHIJN For Law Times Supreme Court's decision in West- ern Canada Shopping Centres Inc. v. Dutton. "That decision said that every province can have class action legislation imposed on it in effect by judges," explains Hayley. In fact, Chief Justice Beverley McLach- lin recommended that they "fill the void" when there was no leg- islation in place. "The provincial legislatures responded by saying it would be better to pass some leg- islation than have judges making the law piecemeal from legislation in other provinces." Since then, Newfoundland/Labrador, Saskat- chewan, Manitoba, and Alberta have all passed comprehensive class action legislation. André Lespérance, of "There is no better example of the problems that arise. The range of damages that were the subject of compensation were different in different jurisdictions even though the drug was advertised and marketed the same every- where. In Ontario, only serious wrongdoing was subject to com- pensation, while Alberta had a far wider range." Peter Lown, who is director of the Alberta Law Reform Insti- tute, says it's time to get rid of the A national of Lawson Lundell LLP in Van- couver, when the courts in Ontar- io, Quebec, and British Colum- bia certified class actions in past times, counsel would co-operate and courts would show deference to the other jurisdictions. With a whole bunch of new players coming on to the scene, that co- operation is getting harder to find. "When plaintiffs and courts don't work together, deciding which one should have carriage is a very vexed question indeed," he says. The trouble all started with the Lauzon Bélanger Inc. in Montreal, has been watch- ing the progress of class ac- tion litigation since 1993. "Back then, access to repre- sentation was a problem, but the last few years have added a totally new dimension. With multiple jurisdictions, one indi- vidual can be represented in 13 class actions. Now the situation is that there are too many ac- tions on a single issue!" Lespérance feels that once ac- cess to justice has been achieved, the next challenge is to deliver the efficient allocation of resources, and that means not duplicating proceedings over and over again. "It's an interesting country — a bit like Europe. Each province has its own law. There is no way to force one province to accept the jurisdiction of other provinces." He points to the Baycol pro- ceedings, arising from an allegedly defective anti-cholesterol drug, which occurred in every province. statutory regime, and the Uniform Law Conference of Canada re- sponded by consolidating its mod- el "class proceedings act" in 2006 to include provisions tackling the problem of multiple jurisdictions. So far, the statutory regime has only been taken up in Sas- katchewan, although Alberta and Quebec are actively looking at it. Lown believes that the ULC act is the operating norm across the country and that legislation will catch up in time. "In the meantime courts can introduce the recom- mended elements. They don' database is a way to inform people what exists and also acts as a de facto screen. If you put it out in the open, up front, there are no surprises. limitations of only doing class ac- tions in one jurisdiction at a time. "Businesses don't do business province by province. Their ac- tivities straddle jurisdictional bor- ders and the court actions do as well. Many jurisdictions had pro- cedures established through their rules of court or civil procedure allowing the courts to combine a number of plaintiffs in a single ac- tion, but there were drawbacks," explains Lown. "Procedural law didn't deal with limitations of ac- tions or substantive issues such as whether people were bound by the order." The ALRI recommended a It's no secret, privacy law is creating some confusion, with big consequences. Get the clarification you need to comply with … Privacy Law in the Private Sector: An Annotation of the Legislation in Canada Jeffrey A. Kaufman Current contributors: Sara A. Levine, J. Alexis Kerr, Karl Delwaide and Antoine Aylwin Past contributors: Priscilla Platt, Lise Hendlisz, Daphne Intrator and Karine Joizil " … this is a book that will make life easier for anyone involved in the subject of privacy law in the private sector." The Honourable Horace Krever, This indispensable guide provides text and cross-referencing for current federal and provincial statutes and regulations that address private sector privacy, together with annotations, commentaries and case law references and summaries that clarify the law. Inside you'll find federal privacy legislation (PIPEDA), and provincial legislation for British Columbia, Alberta and Quebec, as well as privacy legislation in respect of personal health information for Ontario. It also includes highlights setting out commentary on the most current issues of interest in privacy. This regularly updated service: within the current health policy and legislative climate www.canadalawbook.ca KAUFMAN_Privacy Law in the Private Sector (LT 1-4x3).indd 1 www.lawtimesnews.com 8/26/08 10:20:56 AM the leverage of statute law but they can use the certification process. Courts clearly have the ability to bind non-residents that at- torn to the jurisdiction." Even if the act were ad- opted formally everywhere, there would still be work to do. "The act creates cri- t have agree," says Lespérance. He be- lieves that co-ordination and con- sensus are the answers, and that the burden first falls on the plain- tiffs. "Plaintiffs can agree to find one place and not fight amongst themselves, either by getting na- tional certification by consensus, or by suspending the action in their own jurisdiction and await- ing an outcome in another." One attempt to co-ordinate plaintiff activities is occurring through the National Class Action Database — a pilot project by the Canadian Bar Association. "A na- tional database is a way to inform people what exists and also acts as a de facto screen. If you put it out in the open, up front, there are no surprises," says Lespérance. Lown feels the database forces people into co-operative mode. "People, by knowing what is hap- pening, are tempted to talk." This applies to defendants as well, who could agree to fight certification in one place rather than 13 places. A number of jurisdictions have issued, or are contemplating, prac- tice directions requiring counsel to complete the database registration teria but does not provide a solution when two courts don't form and provide relevant docu- ments to the CBA, but compli- ance is mostly by moral persua- sion at the moment. "There are rules of practice but there is no stick associated with them," says Lespérance. He updates the statistics on the database web site and sees that compliance is getting better. "In Quebec, there is close to 100 per cent compliance but there's a lag of two to three months. Nor- mally plaintiffs' lawyers should register on the same day. B.C. is about 100 per cent, and Ontario is under-reporting." He believes there are two rea- sons for this. "Ontario doesn't have a registry like Quebec and they don't have followup to ensure compliance. In Quebec, a judge in charge of class actions sends a letter to the plaintiff to remind them. The experience in Quebec has been that you have to do the followup to educate the lawyer." Lespérance believes that com- pliance will come from the force of the market. "If it doesn't, courts will have to adopt a rule that is binding." Courts can also do more to help the process run smoothly by having some sort of dialogue be- tween them. The judicial councils are aware of the issue and are there are calls to create a protocol for court-to-court communication. "They did it with assignment of bankruptcy and now they are trying to do it with class actions with a rule of convocation," says Lespérance. "The assumption is that when they talk they will come to a consensus, but if they don't agree, the courts have to give some guidance. You can cer- tify subject to conditions, or have subclasses with different methods of adjudication, or opting in or out. An Ontario court can't say, 'Hey, Newfoundland, do this.' You say to Newfoundland, 'Can you assist us with collecting evidence and affidavits?' Courts need an appropriate way to com- municate so they can arrange those things. In class actions, it's not one-size-fits-all." LT former Justice of the Ontario Court of Appeal Your best choice for reaching Ontario's legal market It's what's inside that counts! We have it all! Subscribe today on-line at www.lawtimesnews.com

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