The Superior Court of Quebec recently rendered the first reported judgment in Canada ordering the application of the Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions (Protocol) in contested proceedings.
The Sophie St-Marseille v Procter & Gamble Inc. decision is important because multijurisdictional class proceedings can result in conflicting judgments and the application of conflicting laws. What transpires in one jurisdiction may affect the rights of the parties in the parallel proceeding(s) in another. The Protocol seeks to avoid these issues by facilitating the exchange of information between counsel, litigants and courts. The increased exchange of information allows class members to make enlightened decisions about their rights, and the courts to better safeguard those rights.
Beginning in 2009, six separate class actions1 were commenced against Procter & Gamble (P&G) and GlaxoSmithKline (GSK) entities in five different provinces: two in Quebec and one each in Ontario, Manitoba, Saskatchewan and British Columbia. Each of the six actions seeks authorization to commence class proceedings on behalf of a national class and alleges that the denture adhesive products manufactured and marketed by P&G under the brand name “Fixodent” and by GSK under the brand name “Poli-Grip” cause neurological problems of which defendants gave no warning.
The Protocol, adopted by the Canadian Bar Association (CBA) in August 2011, provides for the creation of a Notification List of all counsel involved in multijurisdictional class actions concerning the same or similar subject matter. All motions made by a party in any of the actions must be on notice to the Notification List. In addition, plaintiff counsel must post all pleadings in their actions on the CBA Class Action Database website.
The Protocol further provides that courts may grant a Multijurisdictional Class Settlement Approval Order, which is intended to facilitate the coordination of settlement approval hearings and notices.
Justice Claude Auclair noted that the Protocol is likely to be formally integrated into the rules of practice in fall 2012. Recourse to the Protocol by case management judges is no different than judicial recourse to the CBA’s code of ethics, often applied by Quebec courts.
In his opinion, application of the Protocol would ensure, at minimal expense, that all parties, counsel and courts concerned receive notice of the motions brought in other jurisdictions in multijurisdictional class actions in a manner consistent with the principles of transparency that underlie the judicial system. Justice Auclair noted that when certification is sought on behalf of a national class, the obligation to inform is heightened and the Protocol avoids the miscommunication that can arise in parallel class actions. Specifically, the application of the Protocol answers the Supreme Court’s call in Lépine v Canada Post Corp. to establish “more effective methods for managing jurisdictional disputes […] in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space.”