The push to have some sort of system for co-ordinating national class actions got a small boost during the Canadian Bar Association conference last week.
During the event in Halifax, the CBA council approved part of the judicial protocol drafted by the organization’s national task force on class actions.
It includes a requirement that plaintiff counsel post the pleadings in their case on the CBA’s class action database; a standard set of information to go into settlement approval notices to class members that will be suitable for use in all jurisdictions; and provisions for co-ordinating the court approval process for multi-jurisdictional class settlements.
The latter element of the protocol would allow for communication between the judges involved, including via video link, as well as consideration of a uniform settlement approval order for the various cases across the country.
Following last week’s approval in Halifax, Sylvie Rodrigue, a partner at Norton Rose OR LLP and chairwoman of the CBA task force, said the protocol is now ready for implementation in September.
That’s a good thing and an obvious testament to the task force’s ability to get solutions to the vexing problem of multi-jurisdictional class actions in a relatively short period of time.
But the protocol approved last week didn’t include a final key provision allowing for the appointment of a case management judge to oversee scheduling matters in situations where there are overlapping class actions filed across the country.
The change was in response to objections from the bar, said Rodrigue, who spoke during a panel discussion on the new protocol during the conference.
The concern, she said, centred on whether judges can delegate their management powers to a colleague in another province. At the same time, there were objections over the lack of an appeal process in relation to a case management judge’s decisions.
Those concerns prompted a degree of exasperation among judges on the panel last week. “We’re talking scheduling here,” said Saskatchewan Court of Queen’s Bench Chief Justice Robert Laing. “We’re not talking substantive rights.”
“We have to go further,” chimed in Quebec Superior Court Chief Justice François Rolland, who called the delays stemming from the proliferation of class actions unacceptable.
Rodrigue noted the task force hopes to revise the protocol to get additional provisions approved next year. In particular, she noted the concerns about an appeal process are legitimate.
Let’s hope that’s enough to get over the objections to case management. If we can’t co-ordinate schedules, we’ll never get to a place where we’ll have any degree of efficient management of multi-jurisdictional class actions.
The problem may be a reality of our constitutional system, but it’s clear that we have to be open to solutions. It’s hard to imagine that there are many people who want a repeat of the long-running carriage battle in the Vioxx class action.
Plaintiff counsel may enjoy the fees earned from launching cases, but when they have to divide them among multiple lawyers in overlapping matters, doing so becomes much less profitable. The parties involved, meanwhile, lose out as well.
— Glenn Kauth
For more on the CBA conference, see
"Nicholson rebuffs CBA critics."
