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NATIONAL CLASS ACTIONS
managing competing class actions
In 1996, the Uniform Law Conference of Canada (“ULCC”) produced model class proceedings legislation that was proposed as one way of avoiding interjurisdictional confusion. However, two problems were later identified by those in favour of such legislation. First, the model legislation was only proposed after Quebec and Ontario had already introduced their own legislation. Second, the model legislation required residents of other provinces to opt into class actions in each province. In 2005, a ULCC Committee was created to prepare a report regarding the problem of competing provincial class actions. The Committee started with the assumption that, generally, one national action is the most efficient litigation structure and is the one that has the best prospect of achieving access to justice. In order to maximize the prospect for single national action, a proposal dubbed the “national carriage motion” was made. It adopted much of the structure used to determine the preferable action and counsel when there are competing actions within a single jurisdiction. It also contained the key elements of the “forum non conveniens” test, since the question across jurisdictions is not simply who has the best action, but where the action is most appropriately determined. Ward Branch and Christopher Rhone discuss the ULCC process and two major changes to the 2005 report that were approved in 2006.
PRE-CERTIFICATION PROCEDURES
addressing the merits of a class proceeding
Class proceedings legislation is intended to permit plaintiffs to aggregate small but meritorious claims against larger defendants, so that the claims can be prosecuted efficiently and fairly, notwithstanding the resource differential of the respective parties. This is a laudable goal. However, legislation that effectively encourages people to commence legal proceedings will, not surprisingly, have that very result. Consequently, the courts have had to grapple with the management of proposed class proceedings that are, in some cases, founded upon allegations of questionable legal merit. Roy Millen discusses the procedural means and substantive virtues of applications to determine the merits of proposed class actions prior to certification. As well, the author argues that pre-certification motions on the merits have become an important tool for streamlining proposed class proceedings, in order to reduce the risk of wasted cost, delay and uncertainty necessitated by the process of and following certification.
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S. Gordon McKee
Editor-in-Chief
Blake, Cassels &
Graydon LLP
Kirk M. Baert
Koskie Minsky
Ward K. Branch
Branch MacMaster
J.J. Camp, QC
Camp Fiorante Matthews
James A. Hodgson
Hodgson Shields
DesBrisay O’Donnell
MacKillop Squire LLP
Yves Lauzon
Lauzon Bélanger S.E.N.C.
Steven Leitl
Macleod Dixon LLP
Ronald L. Miller, QC
McDougall Gauley
James M. Newland
Lerners LLP
Sylvie Rodrigue
Ogilvy Renault LLP
Phil Spencer, QC
Cassels Brock &
Blackwell LLP
Garry D. Watson
Osgoode Hall Law
School, York University
Josiah Wood, QC
Blake, Cassels &
Graydon LLP |