CBA Council Passes Resolution on Judicial Protocols for Class Actions

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I received a copy of an email blast from Sylvie Rodrigue, Chair of the National CBA Task Force on Class Actions this morning announcing that on August 14, 2011, the Council of the Canadian Bar Association:

  • approved as best practices the Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions; and
  • endorsed the ABA “Protocol on Court-to-Court Communications in Canada – U.S. Cross-Border Class Actions” and “Notice Protocol: Coordinating Notice(s) to the Class(es) in Multijurisdictional Proceedings.”

Rodrigue writes,

“I believe the Protocols represent a significant step forward for coordinating multijurisdictional class actions. They provide standardized mechanisms to notify counsel, parties and the courts of overlapping actions, and to conduct settlement proceedings. The Task Force will urge Chief Justices in each jurisdiction to adopt the Protocols.

The approved Canadian Judicial Protocol was a revised version from the consultation draft sent to CBA members. Members questioned the constitutionality of case management proposals and raised practical issues about where an appeal of a case management order would be heard. The Task Force listened, and removed the case management provisions subject to further consideration and consultation.”

A copy of the CBAQ Task Force on Class Actions Protocol and Annexes are available here.

For cross-border class action practitioners, “Resolution 11-03-A ― Annex 2
Protocol on Court-to-Court Communications in Canada – U.S. Cross-Border Class Actions” is of immediate interest. The English version is reproduced below:

1. Where a court intends to apply this Protocol (with or without modifications), counsel in that case shall be given notice and an opportunity to be heard on the sections of this Protocol to be employed. Following such a hearing, the adoption of part or all of this Protocol should, wherever possible, be set forth in orders or minutes or other notice to counsel in the case before it is applied. The Protocol, as and to the extent adopted by the court, shall thereafter be maintained on the docket of the court for the case. (Guideline 1)

2. All counsel should advise the court of any other class actions involving or arising out of (in whole or in part) the same claims or events as in the case before it (a “Related Class Action”) of which they or their client(s) are aware.

3. If a court has been apprised of a Related Class Action and this Protocol has been adopted, wherever there is commonality among substantive or procedural issues in the proceedings, the court should communicate with the other court(s) in the manner prescribed by this Protocol with the goal of coordinating proceedings before it with proceedings in other jurisdiction(s). (Guidelines 2 and 16; Article 25)

4. Arrangements contemplated under this Protocol do not constitute:

i) (i) a relinquishment, compromise, waiver, abridgement or extension by the court of any in personam or subject matter jurisdiction, powers, responsibilities or authority; or (ii) a determination of any procedural or substantive matter in controversy before the court or before any other court(s); or

b) a relinquishment, compromise, waiver or abridgement by any of the parties of any of their jurisdictional, substantive or procedural rights, claims or defenses, or a diminution of the effect of, or their rights with respect to, any of the orders made by the court or the other court(s). (Guideline 17)

5. Prior to a communication with another court, the court should be satisfied that the proposed communication is consistent with the applicable rules of procedure or other governing law in its jurisdiction. (Guideline 1)

6. Each court should designate a Liaison Counsel for plaintiffs and a Liaison Counsel for defendants in the proceedings before it to whom, in the first instance, materials from the other court(s) should be provided by e-mail, facsimile or other specified means and who should be responsible for providing materials to the other court(s). (Guideline 12; Article 14)

7. Courts may communicate without parties present, provided:

a) such communication pertains solely to procedural, coordination or other non-substantive matters;

b) counsel for all affected parties are given advance notice of the communication; and,

c) following the communication, counsel are given a summary of the communication. (Guidelines 8 and 9)

8. Communications from a court to another court or court(s) may take place by or through the court:

a) sending or transmitting copies of formal orders, judgments, opinions, reasons for decision or endorsements, other than documents under seal, directly to the other court(s); and/or,

b) participating in two-way communications with the other court(s) by correspondence, telephone or video conference call or other electronic means. (Guideline 6)

9. A court may conduct a joint hearing with another court or court(s). The following should apply to any joint hearing unless the parties agree otherwise:

a) each court and counsel for all parties should be able to hear the proceedings simultaneously in the other court(s);

b) courts and counsel should be alert to privilege and immunity-related issues, including where the law may differ from one jurisdiction to another, and arrangements should be made on a case-by-case basis to address these issues; and,

c) submissions or applications by the representative of any party should be made only to the court in which the representative making the submissions is appearing unless the representative is specifically given permission by the other court to make submissions to it. (Guideline 9)

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