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CCCA_V7No4_ClassAction-FIN_CCCA 13-11-25 12:38 PM Page 21 CBA Protocol provides guidance Feature As a class action defence lawyer who regularly appears before judges in Quebec and Ontario, Torys partner Silvie Rodrigue has first-hand experience with one provincial court ignoring the rulings of another. In 2009, the Supreme Court of Canada dismissed an appeal of Canada Post v Lepine, declining to give guidance on the management of multi- jurisdictional, overlapping cases. “More effective methods for manag- ing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space,” the court concluded. “It is not this Court’s role to define the necessary solutions.” As chair of the Canadian Bar Association National Task Force on Class Actions, Rodrigue spearheaded efforts that led to the establish- ment in 2011 of the CBA Judicial Protocol for the Management of Multi- Jurisdictional Class Actions. Case management provisions were excluded from the protocol pending further study by the task force. “For me, the driver of this and the most important thing is communi- cation and comity,” says Rodrigue. In cases across multiple jurisdictions, the current protocol covers the handling of notification (with affected parties in multiple jurisdic- tions ensured access to the same information about a proposed class action) and settlement (with all courts participating in a simultaneous video-conferencing). The protocol applies when one party makes a request of the courts and becomes binding on the proceedings, if ordered by the judges. Acknowledging some criticism of the protocol since implementation, Rodrigue describes it as “baby steps, but it is better than nothing.” In 2012, the protocol was first used in Osmun v. Cadbury Adams, with courts in Ontario, Quebec and British Columbia agreeing to convene a simultaneous hearing that facilitated a settlement without the need for three separate hearings. offer us so we have effectively retained them as con- “It has not been without bumps and it has been cumbersome at sultants in relation to the Canadian litigation,” says time,” says Christopher Naudie, a partner with Osler, Hoskin & Harcourt Branch. “In the past, the U.S. case ran out ahead and and a specialist in class action defence and cross-border litigation. settled for ‘X’ and Canada was the tail on the dog. “But based on the experience to date, it is working,” he adds. “Clients Often the defendant would tell the Canadian [plain- have appreciated the benefits and reduced costs associated with tiff] to get stuffed or offer 50 cents on the dollar of approving a national class settlement.” what was offered in the U.S.” Even when the protocol is not officially used, it serves as an informal For its part, the American firm receives a fee for its guide. Class action defence lawyer Catherine Beagan-Flood, a partner advice. “You end up negotiating an arrangement with Blake, Cassels & Graydon LLP, says some cases have not suited where they get paid for their assistance,” notes Branch. the protocol, as currently written. “But we came up with a tailored pro- “They have built up this intellectual capital already tocol that was inspired by the CBA protocol and got approval from the and so for a marginal bit of work in Canada they get courts to use that instead,” she says. to sell the same product twice.” In addition to Rodrigue’s ongoing work as chair of the CBA national In-house counsel, says Branch, should weigh the task force, she is co-chair of the International Bar Association Multi- merits of an early settlement before a class action gets Jurisdictional Class Action/Collective Redress Working Group. In that off the ground. But if the decision is to fight a claim, he capacity, she hopes to export the Canadian protocol to the internation- says corporate counsel need to integrate the approach al level. HIVER 2013 CCCA Canadian Corporate Counsel Association 21