Canadian Bar Association focuses on multijurisdictional class actions in revised judicial protocol

At its annual meeting on February 15, the Canadian Bar Association (“CBA”) passed a resolution approving a revised “Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions and the Provision of Class Action Notice” (the “Revised Protocol”). Building on an earlier judicial protocol adopted by the CBA in 2011, the Revised Protocol sets out a number of ‘best practices’ for courts and the judiciary to follow when managing multijurisdictional class proceedings.

Currently, multijurisdictional class actions – which often involve overlapping classes and issues  – may proceed completely independent from one another, giving rise to costly and inefficient litigation with potentially inconsistent results. In the absence of a national legislative solution for multijurisdictional class actions, the Revised Protocol is aimed primarily at fostering greater coordination of these proceedings.

Highlights of the Revised Protocol’s best practices include the following:

• Registration in the CBA Class Action Database: prior to the first case management conference for the proceeding, plaintiff’s counsel in the action shall: (i) post their pleadings on the CBA’s Class Action Database; and (ii) compile a “Notification List” setting out the names and contact information for all known counsel and judges in any related class actions (which is to be provided to the court and all other counsel). Plaintiff’s counsel must update the Notification List at any subsequent conference or hearing if any changes become known.
• Judicial communication and joint case management conferences: the parties may agree that the judge in their action may communicate with the judges in any other related actions, for the purpose of determining the most efficient process for the consideration of any motions and the appropriateness of any related communications. The judges must advise counsel if any such communication occurs and may disclose the nature of the discussions. The parties may also agree that the judge in their action may direct that a joint case management hearing be held with the judge in any other action, provided that the other judge agrees.
• Notice of and participation in motions: if a party to a multijurisdictional class action brings (i) a motion for a stay of proceedings; (ii) a motion to dismiss due to the existence of other actions; or (iii) a motion for certification (if the class includes members that would fall within the class definition in the other actions), the party must provide each of the judges and counsel in all applicable actions with the Notification List and a copy of the notice of motion or application. An order may be sought to allow counsel or the judge in any other action to participate in the motion to the extent permitted by court rules.

While the Revised Protocol is not mandatory or binding, it does provide the framework for a  co-ordinated approach to multijurisdictional class actions. This is significant, as the adoption of the Revised Protocol comes at a time where the reformation of class actions procedure in general is being explored in a number of provinces. As we have written previously, earlier this year the Law Society of Ontario released a consultation paper to solicit comments from the legal community on issues such as the delay and cost associated with the current class actions regime, including a focus on multijurisdictional class actions. More recently, the government of British Columbia introduced Bill 21, which proposes a number of amendments to the current Class Proceeding Act, including a number of rules for multijurisdictional proceedings. Expect to see further reforms in the coming years as solutions to the difficulties inherent in multijurisdictional class proceedings continue to be sought.