Navigating Multi-Jurisdictional Class Actions | Bennett Jones LLP

Parallel class actions, filed in different Canadian jurisdictions under different provincial class action laws, erode the efficiency that class actions are intended to facilitate and risk duplication and contradictory court decisions.

To address these challenges and manage limited judicial resources, courts have increasingly turned in recent years to encouraging national coordination and communication to adjudicate overlapping cases.

Courts have also granted pre-certification stays of overlapping or duplicative proceedings to help manage strained court resources, among other goals.

The 2021 decisions of Britton v Ford Motor Company of Canada and Ravvin v Canada Bread Company Ltd illustrate how Alberta courts are using these tools to manage parallel class actions.

Intergovernmental cooperation

Over the past several years, and particularly since the onset of the COVID-19 pandemic, judges and class action lawyers have sought opportunities to improve coordination and communication between the courts and parties facing class actions. collectives that overlap in several Canadian jurisdictions. In some cases, law firms have taken the initiative by organizing consortia to coordinate national litigation. In other cases, the courts have directly coordinated actions.

In Winder v. Marriott International Inc., the defendants faced overlapping class actions in British Columbia, Alberta, Ontario, Quebec and Nova Scotia. The defendant traveled simultaneously to each jurisdiction to determine the number of actions he should have to defend. With the agreement of the parties, the case management judges in each action adopted the Canadian Court Protocol for Managing Multijurisdictional Class Actions and Providing Canadian Bar Association Class Action Notice. The parties agreed that the judges could talk to each other and that a multi-jurisdictional joint hearing would take place, with the participation of five superior courts covering four different time zones.

The parties ultimately agreed to proceed with a single national class action in Ontario and to stay the overlapping proceedings in other jurisdictions. Justice Perell nevertheless issued a decision at the end of 2020 to “commemorate what has been a remarkably successful collaboration of five superior courts from across the country that promotes access to justice and the fair and efficient administration of justice. in all the countries “.

In 2021, in Britton v Ford Motor Company of Canadathe Alberta Court of Queen’s Bench noted the apparent tendency of some courts to coordinate, as encouraged Winder v. Marriott International Inc.and sought submissions from the parties on facilitating a joint discussion with the Saskatchewan Court of Queen’s Bench, as the two courts faced nearly identical proceedings.

Pre-certification stays

Staying proceedings prior to certification is an important mechanism to help courts manage multijurisdictional class actions. Parties may seek a stay before a claim has been certified as a class proceeding. Faced with a multijurisdictional class action, a party may argue that there is already an overlapping class action in another province and therefore the new action should be stayed.

In deciding whether or not to stay the action, courts may consider many factors, including the location of the parties, time limits, the progress of other actions, the similarity of the issues, and the potential harm or hardship resulting of a suspension.

In its 2021 decision in Ravvin v Canada Bread Company Ltd, the Alberta Court of Appeal reiterated that duplicative national class actions should be avoided if they do not serve a legitimate purpose. A legitimate purpose may involve the engagement of different facts or laws, or whether separate procedures are necessary to advance the objectives of class actions: judicial economy, access to justice, and behavior modification. Without a legitimate objective, duplicate proceedings impose unnecessary costs and burdens on courts in Canada and require a coordinated national approach.

Recently, the Saskatchewan Court of Queen’s Bench in Piett vs. Global Learning Group Inc. dismissed a class action lawsuit, noting that duplicating proceedings can lead to complications, greater expense, delays, inefficiency and the risk of conflicting rulings. In contrast, the Ontario Superior Court of Justice in Workman Optometry v Aviva Insurance denied a request for a stay, finding that there was no injustice or prejudice in the circumstances to allow overlapping actions to proceed.

The Supreme Court of Canada has yet to weigh in on the issue of overlapping class actions, having denied leave in cases that raise these issues. This refusal may be a sign that the Supreme Court supports the continued collaboration of superior courts to manage overlapping cases.

The ability to maintain overlapping, multi-jurisdictional class actions is essential to preserve judicial efficiency and protect limited judicial resources. In 2022 and beyond, managing overlapping class actions across provincial borders will be increasingly important as courts navigate the backlog of existing cases and the influx of new cases related to the coronavirus pandemic. COVID-19.

About Frances R. Smith

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