(The author was a member of the CBA National Class Actions Task Force 2016-2017)

At the CBA Annual Meeting on February 15, 2018, a resolution to approve, as best practices, a revised Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions was approved. The resolution also urges Canadian courts that administer class actions to adopt the revised Canadian Judicial Protocol.

The Revised Protocol builds on the existing CBA Protocol providing for the creation of a Notification List of all counsel involved in class actions involving the same or similar subject matter, and the approval and administration of settlements through Multi-jurisdictional Class Settlement Approval Orders.

The Revised Protocol establishes best practices by which multi-jurisdictional class actions may be coordinated among courts in circumstances that do not involve settlements. It includes the following:

  • A requirement that prior to a date for the first case management conference in any of the actions being set, Plaintiff's counsel post the pleading in its action on the CBA Class Action Database and compile a Notification List listing the names of all known counsel and judges in any actions, with all known contact information;
  • A framework for communication between judges in different provinces dealing with potentially overlapping class actions, allowing them to speak to each other and to conduct a joint case management hearing if the judges in both jurisdictions agree; and
  • A requirement that a party bringing a motion to stay or dismiss proceedings based in whole or in part on the existence of other actions, or for certification if certification would involve class members in other actions, to provide all judges and all counsel in the relevant actions with a copy of the Notification List and a copy of the notice of motion or application.

The Revised Protocol is the product of a reconstituted CBA National Class Actions Task Force composed of lawyers with expertise in class actions drawn from both the plaintiff and defence bar, and members of the judiciary from 5 provinces.

This represents yet another step in the CBA's efforts to facilitate the co-ordination of overlapping class actions in different jurisdictions, in the absence of a constitutional framework that would permit the creation of an equivalent to the U.S. Judicial Panel on Multidistrict Litigation.

More information can be found at: http://www.cba.org/getattachment/Our-Work/Resolutions/Resolutions/2018/Class-Action-Judicial-Protocols-(1)/18-03-A.pdf

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