On February 15, 2018, the Canadian Bar Association (the “CBA”) approved the “Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions” (the “Protocol”) as the best practice for Courts and judges managing class proceedings in which related class actions are filed in more than one Canadian province. Although adoption of the Protocol is not mandatory, the CBA is urging Canadian Courts to implement it. In the absence of a coordinated national class action regime in Canada, widespread adoption of the Protocol could result in greater coordination between class action counsel and judges across provinces, and potentially help reduce some of the inefficiencies, increased costs and inconsistencies that can arise from the now commonplace occurrence of multiple overlapping class proceedings.
Key features of the new Protocol include:
- Plaintiff’s counsel should post the pleadings in their action on the CBA Class Action Database, advise the Court of any other related action of which they are aware, and compile a Notification List of the names and contact information of all known counsel and judges in all related actions.
- The parties can agree to allow the judge presiding over their action to communicate and conduct joint-case management conferences with other judges in related actions, if the judges agree.
- Parties and judges in all related actions should be notified and given a copy of any motion to stay or dismiss proceedings based on the existence of related actions, and of any motion for certification if certification would involve class members in other actions.
Some of the measures suggested in the Protocol mirror efforts already being made by some class action judges managing related actions to increase communication and coordination between them. However, so far, any coordination has been ad hoc based on the managing judge’s preference.
Whether courts adopt the Protocol, and how they will apply it to coordinate overlapping class actions, remains to be seen. The Protocol does not propose substantive best practices for how to manage differences in class actions procedures between provinces. For example, Quebec class actions are subject to an authorization process that is somewhat different from the certification process in common law jurisdictions, and class actions in Quebec often proceed to authorization more quickly than parallel cases in common law jurisdictions proceed to certification. The Protocol does not suggest best practices for how such cases ought to be coordinated.
The new Protocol supplements the CBA’s previously approved and more narrow best practices focused specifically on class action settlement approvals and the issuance of notices related to settlement. These best practices are now subsumed within the new Protocol.