In Brazeau v Canada (Attorney General), the Ontario and Québec courts heard identical motions for a distribution protocol and individual issues protocol in the context of three overlapping class actions. The case demonstrates Canadian courts’ willingness to adopt novel procedures for efficiently managing complex, multijurisdiction class actions. In particular, instead of holding separate hearings – resulting in duplication of effort and costs and risking inconsistent decisions – both courts held a joint hearing and co-operated to issue one decision. In addition, in a further departure from their usual procedure, the courts prepared a draft protocol and invited the parties to propose any changes before issuing a final order instead of just ruling on the parties’ dispute.

Background: identical motions in overlapping class proceedings

In three separate class actions, the federal government was sued for breaching the Charter rights of inmates placed in administrative segregation. Two were Ontario class actions supervised by Justice Perell of the Ontario Superior Court of Justice. The third was a Québec class action supervised by Justice Masse of the Superior Court of Québec.

In the Ontario actions, the plaintiffs obtained summary judgment finding Canada liable, awarding aggregate damages for a base amount, and holding that class members may receive further damages after individual issue trials. In the Québec action, Canada consented to a judgment for liability proportionate to its liability in the Ontario actions. The plaintiffs then brought motions in all three proceedings to seek court approval for a distribution protocol for the aggregate damages award and a protocol for determination of individual issues.

Unique procedure: joint hearing and courts preparing draft protocol

The procedure adopted by the Ontario and Québec courts for resolving the motions was unique in two ways.

First, both courts heard the motions in one virtual hearing. The courts explained that it was desirable to hold one hearing for efficiency, economy, administration, management, and fairness to co‑ordinate the determination of the motions. The hearing was held pursuant to the Canadian Bar Association’s Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions and the Provision of Class Action Notice (the “CBA Protocol”).

Second, the courts did not just receive submissions and then issue a ruling, but rather adopted an iterative process. In particular, at the hearing, the parties agreed on a process pursuant to which both courts worked together to prepare a draft Distribution and Individual Issues Protocol (“Draft D&I Protocol”) that was released as a provisional decision and the parties were invited to show cause why the provisional decision should not be made a final order. The courts also issued reasons explaining the Draft D&I Protocol and reminding the parties that they could still negotiate a different protocol that may be beyond the courts’ jurisdiction to design.

Conclusion

As we have previously discussed on this blog, the Canadian bench and bar have taken several steps over the years to promote the efficient management of complex, multijurisdiction class actions, including:

  • in 2016, the Supreme Court issued a decision (discussed here) endorsing the broad jurisdiction of courts under class actions legislation to, among other things, conduct hearings outside their home jurisdiction in national class actions; and
  • in 2018, the Canadian Bar Association adopted the above-noted CBA Protocol (discussed here) to help co-ordinate multijurisdiction class actions in the absence of national legislation.

Brazeau demonstrates Canadian courts’ continuing willingness to put these concepts and protocols into practice and to depart from their usual procedures in appropriate cases to better manage multijurisdiction class proceedings.