Canadian class action legislation originated from the U.S. Rule 23 model but with adjustments to make class actions more accessible. Most Canadian provinces have class action laws with certification requirements including identifiable class, common issues, and preferable procedure. The Canadian approach generally has a lower certification threshold than the U.S. model. Key differences include the lack of requirements for typicality, predominance, superiority, and the allowance of aggregate damages awards.
The Class Action Fairness Act of 2005,Reed R. Kathrein, Esq.
San Francisco, California
Reed.Kathrein@gmail.com
Reedkathrein.com
CLE International – 3rd Class Actions Annual Conference
January 25-26, 2007 Los Angeles, California
Ware aba dr_adhesive arbitration class actions cfpb_2018 april 3Stephen Ware
Nullification of the CFPB’s Arbitral Class-Waiver Rule
in Political and Legal Context, by KU Law Professor Stephen Ware, of Lawrence, Kansas. For American Bar Ass'n Section of Dispute Resolution annual meeting in Washington, DC, 2018.
Recorded on November 22, 2012 - This webinar in the Family Law Education for Women (FLEW) series looks at a variety of ways to settle issues about children, property, and support, when a woman ends the relationship with her partner. What are the pros and cons of mediation, arbitration, and court, especially when there is or was abuse in the family? METRAC's Legal Director, Tamar Witelson, discusses the issues with Victoria Starr, a specialist in family law practice, and founder of Starr Family Law. Watch the webinar at:
http://yourlegalrights.on.ca/webinar/Conflict-Court-or-Another-Way-Different-Ways-of-Resolving-a-Family-Dispute
The Class Action Fairness Act of 2005,Reed R. Kathrein, Esq.
San Francisco, California
Reed.Kathrein@gmail.com
Reedkathrein.com
CLE International – 3rd Class Actions Annual Conference
January 25-26, 2007 Los Angeles, California
Ware aba dr_adhesive arbitration class actions cfpb_2018 april 3Stephen Ware
Nullification of the CFPB’s Arbitral Class-Waiver Rule
in Political and Legal Context, by KU Law Professor Stephen Ware, of Lawrence, Kansas. For American Bar Ass'n Section of Dispute Resolution annual meeting in Washington, DC, 2018.
Recorded on November 22, 2012 - This webinar in the Family Law Education for Women (FLEW) series looks at a variety of ways to settle issues about children, property, and support, when a woman ends the relationship with her partner. What are the pros and cons of mediation, arbitration, and court, especially when there is or was abuse in the family? METRAC's Legal Director, Tamar Witelson, discusses the issues with Victoria Starr, a specialist in family law practice, and founder of Starr Family Law. Watch the webinar at:
http://yourlegalrights.on.ca/webinar/Conflict-Court-or-Another-Way-Different-Ways-of-Resolving-a-Family-Dispute
This presentation by Professor Spencer Weber Waller, Loyola University Chicago School of Law, was made during the discussion on "Addressing competition challenges in financial markets" held at the 2017 Latin American and Caribbean Competition Forum (4-5 April 2017 – Managua, Nicaragua). More papers and presentations can be found at oe.cd/laccf.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
On September 24, 2014, the Mexican Supreme Court (SCJN) issued a landmark decision in the world of arbitration and class action suits. In summary, SCJN upheld that it is possible to file a class action suit, even though an arbitration clause is included in the agreement that governs the business relationship. SCJN reached the conclusion that the laws that regulate consumer relationship and class actions suits have a public interest, and; therefore, a Court may not reject a class action suit based on the argument that the parties are subject to arbitration.
Class Actions Trends - An Overview of Recent Trends Involving Class Actions Rachel Hamilton
This event has been tailored to provide attendees with the insights and strategies that are needed to ensure compliance with the new rules, defend against new and emerging claims, and adapt to the evolving regulatory landscape. Our unparalleled faculty of key regulatory and enforcement officials, federal and state judges, senior in-house counsel, and leading outside counsel will provide you with strategic advice, critical insights, and comprehensive updates.
If CRA has entirely or partially denied your SR&ED claim, there are two steps you can take to have their decision reviewed and potentially overturned. These two steps are the same whether the issue is "technical" or "expenditure" related, i.e. CRA has ruled that an R&D activity does not qualify as SR&ED, or that an amount claimed in respect of such activity does not attract an SR&ED benefit.
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
BoyarMiller – Navigating Your Company through Spoliation Claims and Strategie...BoyarMiller
A Penny Saved is a Penny Earned:
Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
presented by:
Chris Hanslik, Craig Dillard & Matt Veech
FORMAT FOR CASE BRIEF Virtually all of the cases in thi.docxbudbarber38650
FORMAT FOR CASE BRIEF
Virtually all of the cases in this text (and all legal texts for that matter) are at
an Appellate/Supreme Court level (not a trial court), where Issues of Law
are resolved, as opposed to issues of fact which are resolved at the trial
court level.
This suggested format is a slight modification of an outline for Case Briefs
used in the legal profession. (Example - Text Pg 4 – Case 1.1)
Style of Case and Citation:
Example - United States of America v. Martha Stewart and Peter Bacanovic
U.S. District, LEXIS 12538 (2004)
Court Rendering Final Decision:
Example - U.S. 2nd Circuit Court Of Appeals
Identification of Parties and Procedural Details: Who is the Plaintiff/Appellant?
Who is the Defendant/Appealer? What is the cause of action? Who prevailed in lower
court? Who is appealing to what court?
Example - Original Defendants, Martha Stewart and Peter Bacanovic, are Appealing
their conviction for Insider Trading in the Federal District Court by the U.S.
Department of Justice, and asking for a New Trial based on a Claim of Perjury by the
Prosecution's Expert Star Witness - Lawrence F. Stewart of the U.S. Secret Service.
District Court found insufficient evidence for invalidating the Jury/Court Decisions,
and Stewart and Bacanovic are Appealing to the U.S. 2nd Court of Appeals.
Discussion of the Facts: Who did what to whom? What relief is being sought?
Example - Defendants were trading ImClone Stock based on insider information one
day prior to a Public Announcement of damaging financial information regarding
ImClone Corporation. Both Defendants were also accused of lying to FBI Agents
during an investigation of the Insider Trading Claim.
Statement and Discussion of the Legal Issues in Dispute: What decision of the
lower court is being challenged? What specific legal questions is the subject court
being asked to address? Is the question about Common-Law? A Statute?
Example – The Defendants are challenging the District Court's Denial of their right to
a re-trial based on the presumed Perjury of the Expert Witness. This is a question of
2
Federal Statutory Court Procedure, which did not require an investigation of the
truthfulness of witnesses Testimony.
Subject Court Final Decision: For Plaintiff? For Defendant? What happens next?
Example – Ruling is in favor of U.S. Prosecutors. The conviction of Martha Stewart
and Peter Bacanovic in District Court is Affirmed. Request for a New Trial is
Denied.
Summary of This Final Court’s Reasoning: What is the legal basis for the court’s
decision? Be sure to include relevant Dissenting Opinions.
Example – The Testimony of Lawrence F. Stewart was not reviewed for Perjury by
the Court of Appeals because his Testimony was not successfully challenged in
District Court, and was supported by three other witnesses. Even if Mr. Stewart had.
Offsets in Defence Procurement in Canada - ConsiderationsBrenda Swick
Companies that bid on defence and Canadian Coast Guard contracts are well aware of Canada’s Industrial and Regional Benefits (IRB) Policy, which requires them to undertake business activities in Canada that are valued at 100 percent of the prime contract with Public Works and Government Services Canada. Under Canada’s new Defence Procurement Strategy, IRBs, now called “Value Propositions for Industrial Technological Benefits (ITBs),” will, for the first time, be a rated requirement in the evaluation of a bidder’s proposal. This means that bidders with an otherwise competitive bid are now exposed to losing to a competitor whose bid contains a stronger Value Proposition. The rules are still being developed and therefore bidders would be well advised to keep abreast of the implementation of this new rated requirement. Bidders should ensure that they understand up front the Value Proposition requirement in the solicitation document as well as rules for challenging it, if necessary. Finally, Canada’s new Integrity Provisions will now apply to prime contractors that flow down some of their offset requirements to subcontractors; prime contractors would therefore be well advised to ensure that their subcontractors are willing and able to sign onto terms similar to those set out in the Integrity Provisions. Failure to do so could result in the termination of the contract and imposition of damages very unfavourable to the prime contractor.
All of these issues are discussed in the presentation to the European Countertrade and Offsets Club to be given in Vienna, on November 20, 2014.
Government procurement obligations under the cetaBrenda Swick
This is presentation I gave on how government contracting for Canadian provincial and municipal governments l level will be affected by the new Canada EU Trade and Economic Agreement
More Related Content
Similar to Comparison Between Canadian And Us Class Actions Law And Practice
This presentation by Professor Spencer Weber Waller, Loyola University Chicago School of Law, was made during the discussion on "Addressing competition challenges in financial markets" held at the 2017 Latin American and Caribbean Competition Forum (4-5 April 2017 – Managua, Nicaragua). More papers and presentations can be found at oe.cd/laccf.
A penny saved is a penny earned: Navigating your company through spoliation claims and strategies to maximize recovering attorneys' fees. Presented at the Association of Corporate Counsel.
On September 24, 2014, the Mexican Supreme Court (SCJN) issued a landmark decision in the world of arbitration and class action suits. In summary, SCJN upheld that it is possible to file a class action suit, even though an arbitration clause is included in the agreement that governs the business relationship. SCJN reached the conclusion that the laws that regulate consumer relationship and class actions suits have a public interest, and; therefore, a Court may not reject a class action suit based on the argument that the parties are subject to arbitration.
Class Actions Trends - An Overview of Recent Trends Involving Class Actions Rachel Hamilton
This event has been tailored to provide attendees with the insights and strategies that are needed to ensure compliance with the new rules, defend against new and emerging claims, and adapt to the evolving regulatory landscape. Our unparalleled faculty of key regulatory and enforcement officials, federal and state judges, senior in-house counsel, and leading outside counsel will provide you with strategic advice, critical insights, and comprehensive updates.
If CRA has entirely or partially denied your SR&ED claim, there are two steps you can take to have their decision reviewed and potentially overturned. These two steps are the same whether the issue is "technical" or "expenditure" related, i.e. CRA has ruled that an R&D activity does not qualify as SR&ED, or that an amount claimed in respect of such activity does not attract an SR&ED benefit.
Class Actions: Insurance Related Claims
by Thomas F. Segalla
Whether prosecuting or opposing a motion for class certification, within the context of insurance related claims, there are certain principles that are critical to determining the allegations that are necessary to successfully assert such claims and the nature of any challenge to a motion to certify the punitive class. As the court noted, in the case of Deborah Mahon v. Chicago Title Insurance Co.:[1]
BoyarMiller – Navigating Your Company through Spoliation Claims and Strategie...BoyarMiller
A Penny Saved is a Penny Earned:
Navigating Your Company through Spoliation Claims and Strategies to Maximize Recovering Attorneys’ Fees
presented by:
Chris Hanslik, Craig Dillard & Matt Veech
FORMAT FOR CASE BRIEF Virtually all of the cases in thi.docxbudbarber38650
FORMAT FOR CASE BRIEF
Virtually all of the cases in this text (and all legal texts for that matter) are at
an Appellate/Supreme Court level (not a trial court), where Issues of Law
are resolved, as opposed to issues of fact which are resolved at the trial
court level.
This suggested format is a slight modification of an outline for Case Briefs
used in the legal profession. (Example - Text Pg 4 – Case 1.1)
Style of Case and Citation:
Example - United States of America v. Martha Stewart and Peter Bacanovic
U.S. District, LEXIS 12538 (2004)
Court Rendering Final Decision:
Example - U.S. 2nd Circuit Court Of Appeals
Identification of Parties and Procedural Details: Who is the Plaintiff/Appellant?
Who is the Defendant/Appealer? What is the cause of action? Who prevailed in lower
court? Who is appealing to what court?
Example - Original Defendants, Martha Stewart and Peter Bacanovic, are Appealing
their conviction for Insider Trading in the Federal District Court by the U.S.
Department of Justice, and asking for a New Trial based on a Claim of Perjury by the
Prosecution's Expert Star Witness - Lawrence F. Stewart of the U.S. Secret Service.
District Court found insufficient evidence for invalidating the Jury/Court Decisions,
and Stewart and Bacanovic are Appealing to the U.S. 2nd Court of Appeals.
Discussion of the Facts: Who did what to whom? What relief is being sought?
Example - Defendants were trading ImClone Stock based on insider information one
day prior to a Public Announcement of damaging financial information regarding
ImClone Corporation. Both Defendants were also accused of lying to FBI Agents
during an investigation of the Insider Trading Claim.
Statement and Discussion of the Legal Issues in Dispute: What decision of the
lower court is being challenged? What specific legal questions is the subject court
being asked to address? Is the question about Common-Law? A Statute?
Example – The Defendants are challenging the District Court's Denial of their right to
a re-trial based on the presumed Perjury of the Expert Witness. This is a question of
2
Federal Statutory Court Procedure, which did not require an investigation of the
truthfulness of witnesses Testimony.
Subject Court Final Decision: For Plaintiff? For Defendant? What happens next?
Example – Ruling is in favor of U.S. Prosecutors. The conviction of Martha Stewart
and Peter Bacanovic in District Court is Affirmed. Request for a New Trial is
Denied.
Summary of This Final Court’s Reasoning: What is the legal basis for the court’s
decision? Be sure to include relevant Dissenting Opinions.
Example – The Testimony of Lawrence F. Stewart was not reviewed for Perjury by
the Court of Appeals because his Testimony was not successfully challenged in
District Court, and was supported by three other witnesses. Even if Mr. Stewart had.
Offsets in Defence Procurement in Canada - ConsiderationsBrenda Swick
Companies that bid on defence and Canadian Coast Guard contracts are well aware of Canada’s Industrial and Regional Benefits (IRB) Policy, which requires them to undertake business activities in Canada that are valued at 100 percent of the prime contract with Public Works and Government Services Canada. Under Canada’s new Defence Procurement Strategy, IRBs, now called “Value Propositions for Industrial Technological Benefits (ITBs),” will, for the first time, be a rated requirement in the evaluation of a bidder’s proposal. This means that bidders with an otherwise competitive bid are now exposed to losing to a competitor whose bid contains a stronger Value Proposition. The rules are still being developed and therefore bidders would be well advised to keep abreast of the implementation of this new rated requirement. Bidders should ensure that they understand up front the Value Proposition requirement in the solicitation document as well as rules for challenging it, if necessary. Finally, Canada’s new Integrity Provisions will now apply to prime contractors that flow down some of their offset requirements to subcontractors; prime contractors would therefore be well advised to ensure that their subcontractors are willing and able to sign onto terms similar to those set out in the Integrity Provisions. Failure to do so could result in the termination of the contract and imposition of damages very unfavourable to the prime contractor.
All of these issues are discussed in the presentation to the European Countertrade and Offsets Club to be given in Vienna, on November 20, 2014.
Government procurement obligations under the cetaBrenda Swick
This is presentation I gave on how government contracting for Canadian provincial and municipal governments l level will be affected by the new Canada EU Trade and Economic Agreement
Similar to Comparison Between Canadian And Us Class Actions Law And Practice (20)
Comparison Between Canadian And Us Class Actions Law And Practice
1. Canadian Class Actions Law and Practice
Jill Yates
McCarthy Tétrault LLP
McCarthy Tétrault LLP / mccarthy.ca
2. Introduction
¬ Canadian class action legislation was originally
modeled on Rule 23 of the United States Federal
Rules of Civil Procedure, with some adjustments
¬ Canadian approach was designed to be more
conducive to bringing class actions
¬ Has proven to be true
McCarthy Tétrault LLP / mccarthy.ca
3. Canadian Overview
¬ Class action legislation in eight of the nine
Canadian common law provinces and Quebec
¬ Quebec was first Canadian jurisdiction with class
actions legislation in 1978; then Ontario in 1993
and then B.C. in 1995; others more recent
¬ All but New Brunswick, Newfoundland and B.C.
are “opt-out” jurisdictions for non-resident class
members. An amendment to switch B.C. from
“opt-in” to “opt-out” has been proposed
¬ The legislation in each common law province is
similar to one another
McCarthy Tétrault LLP / mccarthy.ca
4. Canadian Overview
¬ "Trilogy" of decisions by Supreme Court of
Canada in 2001 established numerous important
principles, including defining the objects of class
proceedings in Canada, which are:
¬ access to justice,
¬ judicial economy and
¬ behaviour modification
¬ These objects have informed a permissive
attitude toward class actions generally
McCarthy Tétrault LLP / mccarthy.ca
5. Canadian Overview
¬ Canada does not have national legislation comparable to
Rule 23 governing class actions involving multiple
provinces
¬ Multi-jurisdictional issues are discussed further below
¬ Federal Court of Canada allows class proceedings, but is
a court of limited subject matter jurisdiction; hears claims
in areas of Federal constitutional jurisdiction including tax,
immigration and intellectual property
¬ Vast majority of Canadian class actions therefore brought
in provincial superior courts
McCarthy Tétrault LLP / mccarthy.ca
6. Comparison between Certification under
Rule 23 and Canadian Legislation
¬ Lower threshold for certification under Canadian
legislation
¬ Five general requirements for certification in Canadian
common law provinces (with nuances between the
provinces):
(a) pleadings must disclose cause of action;
(b) must be an identifiable class;
(c) there must be common issues;
(d) class action must be preferable procedure by which to
resolve the case; and
(e) proposed representative plaintiff must be suitable
McCarthy Tétrault LLP / mccarthy.ca
7. Comparison between Certification under
Rule 23 and Authorization
¬ The Quebec Code of Civil Procedure provides:
1002. A member cannot institute a class action except with
the prior authorization of the court, obtained on a motion.
1003. The court authorizes the bringing of the class action
and ascribes the status of representative to the member it
designates if of opinion that:
(a) the recourses of the members raise identical, similar or
related questions of law or fact;
(b) the facts alleged seem to justify the conclusions sought;
(c) the composition of the group makes the application of article
59 or 67 difficult or impracticable; and
(d) the member to whom the court intends to ascribe the status
of representative is in a position to represent the members
adequately.
McCarthy Tétrault LLP / mccarthy.ca
8. Comparison between Certification under
Rule 23 and Canadian Legislation
¬ Each of the requirements for certification in
common law Canada, and for authorization in
Quebec, can be compared to the Rule 23
requirements for certification, as follows on the
following slides:
McCarthy Tétrault LLP / mccarthy.ca
9. Comparison – Canadian Requirement of
Cause of Action
¬ Certification under Canadian class proceedings legislation
in common law provinces requires the pleadings disclose
a cause of action
¬ Onus on plaintiff
¬ No evidence is admissible
¬ Some courts have allowed motions to strike claim before
certification, but sequencing is within the discretion of the
case management judge
¬ In Quebec, authorization will not be granted unless the
facts alleged seem to justify the conclusions sought
¬ Pleadings must be sufficiently detailed to allow the court to
determine if the claim has any chance of success on the
merits
McCarthy Tétrault LLP / mccarthy.ca
10. Comparison – “Identifiable Class” not
“Numerosity”
¬ The “identifiable class” must consist of two or more
persons in Canadian common law provinces
¬ The number of potential class members or their identity
need not be shown
¬ There must be objective criteria to identify the class
members, which are not dependent on the merits
¬ Size of class may be a factor in determining if the class
proceeding is preferable
¬ Quebec has an approach similar to numerosity, where
class representative must show mandate/joinder is
impractical
McCarthy Tétrault LLP / mccarthy.ca
11. Comparison – Commonality
¬ Presence of common questions of law or fact is
a requirement of both American and Canadian
class proceedings
¬ In Canada, issue will be “common” where its
determination is necessary to the resolution of
each class member's claim
¬ Common issues need not be determinative of the
defendant's liability or of the provision of relief to
the class
McCarthy Tétrault LLP / mccarthy.ca
12. Comparison – No Canadian Requirement
of “Typicality”
¬ Typicality is not explicitly required by Canadian class
proceedings legislation
¬ Factors used in analyzing typicality in the US are similar
to those considered by Canadian common law courts in
their examinations of commonality and preferability
¬ First step of Rule 23 analysis is establishing comparable
claims or defences between plaintiff and other persons;
similar investigation by Canadian courts when looking for
common issues necessary to the resolution of class
members' claims
¬ Second step of Rule 23 analysis is comparing claims and
defences of plaintiff to those of the group; similar
comparison by Canadian courts when considering
preferability
McCarthy Tétrault LLP / mccarthy.ca
13. Comparison - No Canadian Requirement
of “Typicality”
¬ Analogous analysis is that Canadian courts consider the
nature of the proposed common issues and the individual
issues that would not be resolved through the class
proceeding
¬ Although the factors considered by US and Canadian
courts are similar, in practice "typicality" in US sets a
higher bar to certification than commonality and
preferability do in Canada
¬ Even where claims or defences are not typical of the class,
Canadian courts allow certification as long as they are
satisfied individual issues will not overwhelm the litigation
and become its focus
¬ Canadian courts do not often conclude individual issues will
become the focus of a case
McCarthy Tétrault LLP / mccarthy.ca
14. Comparison – No Canadian Requirement
of “Predominance and Superiority”
¬ These were intentionally omitted by the government of Ontario when it
adopted the American class actions model
¬ Similarly omitted from the legislation of the other common law provinces in
Canada
¬ Result is lowered threshold for certification in Canadian common law
provinces
¬ Test in Canadian common law provinces is instead preferability, which is
assessed according to several factors including:
¬ extent to which certification furthers the objects of class action legislation
¬ presence of factors set out in the class action legislation, including
¬ whether common issues predominate,
¬ whether a significant number of class members have a valid interest in
pursuing separate actions, and
¬ whether there are other means of resolving the claims
¬ nature of the proposed common issues
¬ individual issues remaining after determination of common issues
¬ complexity and manageability of the proposed action
¬ alternative procedures to deal with the claims
McCarthy Tétrault LLP / mccarthy.ca
15. Comparison – “Representative Plaintiff”
similar to “Fair and Adequate
Representation”
¬ Requirement is similar in US and Canadian class actions
¬ Canadian common law provinces require a
representative plaintiff who will:
¬ fairly and adequately represent the interests of the class;
¬ has produced an acceptable plan for the class action and
for notifying class members; and
¬ does not have a conflict of interest with the other class
members on common issues
¬ In practice, the standard is low
¬ Quebec also requires an adequate representative
McCarthy Tétrault LLP / mccarthy.ca
16. Comparison - Appeals
¬ The legislation in five Canadian common law provinces,
like Rule 23, provides a right of appeal from an order
granting or denying certification, in the discretion of the
court of appeal
¬ In B.C., there is a right of appeal from every certification
decision
¬ In Ontario, there is a right of appeal from decisions
refusing certification but leave is required to appeal a
decision granting certification
¬ In Quebec, there is a right of appeal from a decision
refusing authorization but there is no right of appeal from
decisions granting authorization unless such a decision
dismisses a claim against certain defendants or excludes
proposed class members
McCarthy Tétrault LLP / mccarthy.ca
17. Comparison - Notice
¬ In Canada, individual class members need not be
identified or notified in most cases
¬ The court may order any form of notice it deems
appropriate, including publication in the media
¬ Notice will depend on the nature of the case and
the nature and size of the class
¬ The court may, and often does, require the
defendant to pay the cost of giving notice
McCarthy Tétrault LLP / mccarthy.ca
18. Comparison - Relief and Distribution
¬ Canadian class proceedings legislation expressly authorizes
aggregate damages awards and specifies procedures for their
distribution
¬ In common law provinces, the court may make an aggregate award
to the class if the only remaining questions relate to the assessment
of monetary relief and if the aggregate award can reasonably be
determined without proof by individual class members
¬ These prerequisites have been interpreted liberally
¬ In provinces other than Alberta, the court may use statistics
or sampling to arrive at an aggregate award
¬ Distribution may be on a proportionate or average basis
¬ Where there is a residue of undistributed funds, cy-près
distributions are permitted
¬ In common law provinces, Plaintiffs use “waiver of tort” to seek gains-
based relief
McCarthy Tétrault LLP / mccarthy.ca
19. Comparison – Relief and Distribution
¬ In Quebec, if the evidence can establish the
amount of an aggregate award, the award may
be made without establishing the identity of each
class member or the exact amount of individual
claims
McCarthy Tétrault LLP / mccarthy.ca
20. Other Differences between the Legal
Systems in Canada and the US
¬ Costs: in at least some Canadian provinces (including
Ontario), adverse costs awards can serve as a deterrent
to class action litigation
¬ Contingency fees: in Canada, plaintiff's counsel fees
must be approved by the court and are generally modest
by US standards
¬ Damage awards, including punitives: US awards are
usually much higher than those granted by Canadian
courts. Civil trials by jury are not as common in Canada.
There has never been a jury trial in a Canadian class
action
¬ Judicial scrutiny of settlement agreements: Canadian
judges are prepared to scrutinize settlement agreements
and look into the value received by the plaintiff class
McCarthy Tétrault LLP / mccarthy.ca
21. Carriage Motions
¬ Proposed class actions seeking to represent the
same class are sometimes filed concurrently in
the same province
¬ Leads to “carriage motion” where different plaintiff
firms seek to have carriage of the lawsuit on
behalf of the class
¬ Superior Court judge, usually the case
management judge, will decide who is entitled to
carriage
¬ Defendants are spectators during this process
McCarthy Tétrault LLP / mccarthy.ca
22. Multi-Jurisdictional Class Actions
¬ Duplicate class actions are often filed
concurrently in several provinces
¬ The traditional approach was to file in B.C.,
Ontario and Quebec concurrently; it is now
common for claims to be filed in all Canadian
provinces with class action legislation (all
provinces but Prince Edward Island)
¬ Constitutional issues?
McCarthy Tétrault LLP / mccarthy.ca
23. Multi-jurisdictional Class Actions
¬ Within Canada, conflicts arising from multiple class actions have
typically been resolved by counsel on a consensual basis
¬ Where plaintiffs' counsel in different provinces could not agree on
which action should proceed "first", defendants could be required
to fight in more than one province concurrently
¬ The Canadian Bar Association is in the process of developing a
set of judicial protocols to help resolve such conflicts; these are
focused on notice, judicial case management and coordinated
settlement approvals
¬ Between Canada and the US, there is a continuing trend of parallel
class actions being brought
¬ ABA has recently approved protocols for Canada-US cross
border class actions, addressing coordination of notice and best
practices for court-to-court communication
McCarthy Tétrault LLP / mccarthy.ca
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P.O. Box 10424, Pacific Centre 1000 De La Gauchetière Street West
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Tel: 604-643-7100 Tel: 514-397-4100
Fax: 604-643-7900 Fax: 514-875-6246
Toll-Free: 1-877-244-7711 Toll-Free: 1-877-244-7711
CALGARY QUÉBEC
Suite 3300, 421 7th Avenue SW Le Complexe St-Amable
Calgary AB T2P 4K9 1150, rue de Claire-Fontaine, 7e étage
Tel: 403-260-3500 Québec QC G1R 5G4
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McCarthy Tétrault LLP / mccarthy.ca