New CBA Protocol Creates Opportunity to Case-Manage Overlapping Multijurisdictional Class Actions

The current state of overlapping multijurisdictional class actions in Canada is conducive to inefficiencies, chaos, and abuse. A new Canadian Bar Association Protocol creates an opportunity to address overlapping actions.

The Protocol

During its annual meeting on February 15, 2018, the CBA adopted the “Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions”. The Protocol focuses on the case management of overlapping multijurisdictional class actions and the particularities of settlement and notice in such cases. Regarding the case management of overlapping class actions in different jurisdictions, the Protocol creates a notification mechanism to keep the various courts and parties across the country informed of the existence and progress of overlapping class actions. The parties may agree that their case management judge speak to other judges in other jurisdictions who are case managing overlapping class actions. The parties may also agree to ask their case management judge to direct that a joint case management hearing be held with a judge in any other overlapping action. Even in the absence of the parties’ agreement, the judge can still decide to communicate with judges in other jurisdictions regarding the case.

The Protocol’s Significance

Sometimes actionable conduct harms numerous people in more than one Canadian province or territory. Often such conduct affects people all across the nation. As a result, different plaintiffs may commence class actions in more than one province or territory. Such class actions may overlap on their subject matter or may capture the same or an overlapping class of people. Overlapping cases waste judicial resources and make access to justice more complicated and costly as the parties and the courts usually first have to deal with the overlapping actions before the plaintiff(s) can actually prosecute the claim. If left unaddressed, overlapping class actions are conducive to waste, chaos, and abuse.

Unfortunately, overlapping class actions have proven difficult to address in Canada. Unlike our neighbours to the south, the Canadian federalist constitution does not easily lend itself to the creation of a central body vested with the authority to determine where a national class action must be heard while staying all other overlapping cases.

Despite such constitutional restrictions, the achievements of the Canadian class action jurisprudence have been nothing short of extraordinary. Canadian courts have taken a remedial and pragmatic approach towards class actions as a mechanism that promotes access to justice and holds powerful parties accountable for their harmful conduct. For example, we now treat as a given the existence of national or other multijurisdictional class actions in Canadian provinces and territories, something that was hotly contested and debated by some constitutional scholars, defendants, and practitioners only a few years ago.

Nonetheless, we have yet to solve to the filing of multiple overlapping class actions in different jurisdictions.

The CBA Protocol, if used, provides a channel of opportunity through which overlapping actions may be addressed. During the public consultations on the Protocol in 2017, a team of three class counsel firms including Sotos LLP commended the Protocol and requested that the CBA go even further and create a robust case management regime to deal with overlapping class actions. Although the request did not find its way into the final Protocol, the Protocol remains a valuable tool and a major first step. Its success, however, will depend on whether the courts and the parties make full use of the possibilities that it creates. Just like previous challenges, much can be achieved here with pragmatism and a little imagination.