Canadian Lawyer

46 F E B R U A R Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m n October 2016, the Supreme Court of Canada ruled in Endean v. British Columbia that provincial Superior Court judges may hear motions in multi-jurisdictional class proceed- ings outside their home provinces. But to the extent that the bar was waiting for a decision from the SCC that might provide some clarity on multi-jurisdictional class actions, Ende- an failed to provide that. Today, the class-action litigation bar is still waiting for a case that will have a significant impact on the management of multi-jurisdictional class proceedings; but practitioners see other trends in this sector, such as a low threshold to class cer- tification and conflicting law on litigants' requirement to show harm. "I don't think [Endean] has resulted in a sea change, and I don't think many people expected it to do so," says Ranjan Agarwal, litigation partner at Bennett Jones LLP in Toronto, whose practice includes class actions. When the Endean case got up to the SCC, "it was argued on pretty narrow grounds." Of the cases that have referred to Ende- an since that decision was handed down, "in none of them have you seen the courts expanding the powers of class action judges in a significant way," says Sandra Forbes, partner at Davies Ward Phillips & Vineberg LLP in Toronto, who special- izes in dispute resolution and competition litigation, including class actions. Endean upheld the principle "that class- action legislation should be interpreted broadly and consistent with the purpose of class action, which is to provide access to justice," she says, and it gave a very broad definition to the inherent jurisdiction of the court. The Supreme Court "found that even if there was a province that doesn't have a specific legislative provision that allows a class-action judge to make whatever orders he or she thinks is appropriate for the conduct of the action, that even if you don't have that statute provision, a judge could find that power within [his or her] inherent jurisdiction." A national class action regime In the United States, complex class action lawsuits are governed by a multi-district litigation system: a federal legal proce- dure designed to facilitate the processing of cases such as air disaster litigation and complex product liability suits. In Canada, though, there is no nation- al class litigation regime, a situation one practitioner has described as "a mess." "We continue to labour under uncer- tainty regarding enforcement of nation- al class actions," says Brad Dixon, the Vancouver-based national co-chairman of L E G A L R E P O RT \ L I T I G AT I O N JEANNIE PHAN With no national class litigation regime, managing class proceedings in Canada can get complex By Elizabeth Raymer Multi-jurisdictional mess I

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