Canadian Lawyer

February 2018

The most widely read magazine for Canadian lawyers

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w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 8 47 the Class Actions Group for Borden Ladner Gervais LLP. "You continue to see parties bringing multiple settlement approval applications in multiple jurisdictions, because if they proceed with a national class action in one jurisdiction, the application may not 'stick.'" The Endean approach may offer some efficiency, says Dixon, but not a great deal and only under exceptional cases. So, to the extent that there are multiple class actions across the country, "you have multiple actions, not consolidated ones," says Eliot Kolers, head of the Litigation & Dispute Resolution Group in the Toronto office of Stikeman Elliott LLP. "They're not managed by a single judge. Endean doesn't change that." In typical multi-jurisdictional class action litigation, defen- dants and plaintiffs agree in which province the class action should proceed, and law firms representing the various plaintiffs and defendants across the country will join together in representing the class or defending the action. If British Columbia is chosen as the jurisdiction, for example, then the Ontario and Quebec cases would stay dormant, Kolers explains, with each group of plaintiffs represented by counsel, often at different firms and in their own provinces. In this scenario, says Kolers, "If there's something that needs national approval — let's say one defendant settles — then all three groups of plaintiffs, who are typically working together, will bring settlement approval motions in each of their own jurisdictions to get it approved in all three places before the settlement is implemented." A video-link hookup can link courtrooms in multiple prov- inces, allowing participants to see all courtrooms simultaneously. "One counsel will take the lead, and the other counsel in other provinces will watch on TV. It's all being done at the same time on the same day." In the Endean case, the judges heard the motion sitting together, in person, at the conference they all happened to be attending on that day. But, says Kolers, "Until there's a national multi-district litigation system, a case like Endean is more of a one-off." In an article penned for the National Journal of Constitutional Law in 2010, Peter Hogg and Gordon McKee questioned whether national class actions were constitutional. But, says Agarwal, "There may be other models that could be adopted" that may afford more co-operation between counsel and avoid competing class actions, stay motions and carriage motions. Yves Martineau, partner in the Litigation & Dispute Resolution Group of Stikeman Elliott's Montreal office, says he has noticed "a great deal of co-operation" among counsel in multi-jurisdictional class action litigation over the past decade or so. "Once litigants choose their venues of preference to go to trial, judges in other provinces will show deference to that choice and, as the Supreme Court has said [in Canada Post Corp. v. Lépine], they should . . . have faith in fair treatment [by] all provinces." In the end, though, "it's the court that will have the last word" regarding jurisdiction in which to hear the class action, says Martineau. In 2009's Lépine case, the courts were "politely lectured" for failing to provide the needed co-operation and more efficient management between the courts, he says. That case involved two class proceedings that gave rise to a situation of lis pendens, as the Quebec proceeding had been commenced before the one in Ontario. "There was a problem with the courts being maybe over- protective of their own citizens and not fully confident that they will get as good a treatment in the 'foreign' or other provincial court," says Martineau. "Kudos to the courts, starting with the Supreme Court, and lower courts for how [the SCC's] message was received and applied," he says, adding that "we're all the bet- ter" for that decision. Although a new Quebec Code provision, instituted at the beginning of 2016, requires Quebec courts to protect the rights and interests of Quebec residents in multi-jurisdictional YOU CONTINUE TO SEE PARTIES BRINGING MULTIPLE SETTLEMENT APPROVAL APPLICATIONS IN MULTIPLE JURISDICTIONS, BECAUSE IF THEY PROCEED WITH A NATIONAL CLASS ACTION IN ONE JURISDICTION, THE APPLICATION MAY NOT 'STICK.' BRAD DIXON, Borden Ladner Gervais LLP www.babinbessnerspry.com 416-637-3244 65 Front Street East, Suite 101 Toronto, ON, M5E 1B5 ONE OF CANADA'S TOP TEN LITIGATION BOUTIQUES (Canadian Lawyer) COMPLEX HIGH STAKES HIGH STAKES LITIGATION ntitled-4 1 2018-01-25 8:52 AM

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