Management of Multijurisdictional Class Actions and of Class Actions in Montréal

The Canadian Bar Association (CBA) adopted the new Canadian Judicial Protocol for the Management of MultiJurisdictional Class Actions and the Provision of Class Action Notice (2018 Judicial Protocol) as best practices at its annual meeting on February 15 and the Class action division, Montréal division, is in the process of restructuring itself.

What You Need To Know

• Although the 2018 Judicial Protocol is not mandatory, the coordinating judge of the Class Action Division, Montréal Division, spoke in favor of its adoption. In addition, the parties may make a request for its application. Finally, it could eventually be incorporated into the rules of practice.
• The 2018 Judicial Protocol aims to minimize confusion and maximize communication between judges and lawyers involved in similar class actions in different jurisdictions.
• If you have a class action case at the pre-authorization stage in the Montréal Division, a new judge may be assigned to your case if your judge is not part of the Group of 10.
• If you have a class action case at the post-authorization stage in the Montréal Division, a new judge may be assigned to your case if your judge is part of the Group of 10.

The Details

The 2018 Judicial Protocol was developed by the CBA National Task Force on Class Actions under the chairmanship of Torys partner Sylvie Rodrigue. The CBA Task Force also developed the 2011 Judicial Protocol, which dealt with the procedure for approving multjurisdictional class action settlements and the issuance of notices. The Task Force began meeting again in 2016 to add best practices for the management of multijurisdictional class actions in cases where there is no settlement.

The 2018 Judicial Protocol, developed after consultation with the Bar and members of the judiciary, and taking into account applicable class action legislation across Canada, completes the 2011 protocol. However, it is up to each court to adopt it or not.

The new best practices set forth in the 2018 Judicial Protocol include:

• Disclosure requirements for plaintiff's counsel: Prior to the first case management conference in an action, plaintiff's counsel shall post the pleadings of their action on the CBA Class Action Database, advise the Court of any other parallel action of which they are aware and of the status of such action, and provide this list to the Court and the other counsel. Plaintiff's counsel must keep this information up to date and keep the Court and other counsel informed of any changes.
• A process for exchanging information between judges and counsel in the different jurisdictions: the 2018 Judicial Protocol provides that the parties may consent that the judges in the different jurisdictions speak to each other. In the absence of such consent, a judge may convene a hearing in this regard and render a decision after receiving the parties' submissions.
• The opportunity to hold a joint case management hearing.
• Other disclosure requirements: Judges, upon request, and counsel in the other actions must receive a copy of applications for suspension, applications to dismiss based on the existence of other actions and applications for authorization (certification) which include class members in other actions. Counsel receiving copies of such applications may seek leave to make representations at the hearing.

In addition, the Class Action Division, Montréal Division is in the process of restructuring. At present, the coordinating judge of the Division assigns applications for leave to authorize a class action (certification application) to one of the Group of 73 judges of the Division. Class actions are under the management of the assigned judge throughout their existence (i.e., at pre-authorization stage and after authorization if authorization granted). The Group of 73 judges usually have four or five files each. The main changes that are contemplated, and expected to take effect as of the fall of 2018, are:

• The Group of 73 will be divided as follows:
  • Group of 10: in charge of the files before a judgment on the authorization is rendered (they will have 15 or 16 files each on average).
  • Group of 63: in charge of the files after a judgment authorizing a class action has been rendered (one or two files each).
• The Group of 10 judges will have two or three days per month dedicated to their class action files.
• Unless exception, the judges of the Group of 63 must give away the cases they manage where the judgment on authorization has not been rendered and the judges of the Group of 10 must give away the cases they manage where a judgment of authorization has been rendered.