Cross-border class actions raise due process and litigation preclusion issues of significance to United States counsel seeking to either implement multi-jurisdictional settlements or to select the most favourable venue for trial. A Canadian Bar Association Task Force, prompted by concerns arising from overlapping cross-border class actions, recently published a Judicial Protocol, the goal of which is to have a single Canadian judge empowered to make binding case management orders. While the immediate intent is to coordinate and sequence class action proceedings and settlements across Canada, the Judicial Protocol is also intended to work seamlessly with two American Bar Association class action protocols addressing notice issues and court-to-court communications.

In Canada, class actions generally fall under provincial jurisdiction – nine provinces have similar but by no means identical class action statutes. Provincial superior courts in several provinces can be seized of the same type of class action issue at the same time – claims frequently purport to cover plaintiffs in multiple provinces. Historically, conflicts arising from such overlapping class actions have been resolved by class counsel usually on a consensual basis, good offices and support being afforded by Canada’s provincial class action judges. The Ontario court in particular has a 15 year history of permitting national classes, whether for litigation or settlement purposes, jurisdiction usually based on the defendant’s presence or consent. The Supreme Court of Canada recently acknowledged that national classes litigated within one or more provinces are sometimes necessary, and encouraged rules to be worked out.

The Judicial Protocol seeks to partially fill the gap noted by the Supreme Court. It does not provide a mechanism to determine jurisdiction, or class counsel’s carriage of claims on a national basis. Nor does it create the equivalent of an MDL panel, with power to assign pretrial matters to a single judge.

Rather, the Judicial Protocol provides for counsel notification; sequencing orders by a single case management judge; and coordinated settlement approvals. Some of the details of each of these three components follow:  

  • Notice: The notice protocol is designed to facilitate class counsel being apprised of related class proceedings involving the “same subject matter”.  
  • Case Management: Courts are to communicate for the purpose of coordinating progress of their respective class actions and a “multijurisdictional case management judge” is to be selected, responsible for ensuring motions in each court are scheduled to avoid conflicting decisions – wherever possible. Jurisdiction and certification issues remain with each separate provincial superior court, and are subject to differing appeal routes in each province. The proposed case management protocol is likely to prove controversial; the power of one provincial superior court judge to delegate case management and settlement administration powers to a judge in another province is new constitutional territory.  
  • Settlement Approval: The Judicial Protocol contemplates a joint cross-border hearing to approve settlements, essentially in accordance with and to formalize current class action practice. Cross-border settlement approvals are presently implemented on a consensual basis, taking into account a number of practical factors. In most cases, national settlements have been approved by one, two or three provinces. In a handful of cases, national settlements have been approved simultaneously in several provinces. The Judicial Protocol seeks to shift practice in that direction.

Comments have recently been received on the Judicial Protocol, which is on the agenda for discussion purposes at the CBA National Convention in August 2011 at Halifax, Nova Scotia.