Judicial Comity In National Class Action Settlement Approval – Judicial Efficiency Is No Laughing Matter

In a decision of the Alberta Court of Queen's Bench issued March 18, 2019 (Macaronies Hair Club and Laser Centre Inc. v. BofA Canada Bank, 2019 ABQB 181)1, supplementing an earlier decision2 (the "Macaronies Decision"), Associate Chief Justice J.D. Rooke weighed in on the principles of judicial comity and its role in cost-effective and efficient management of court resources in multijurisdictional class actions. In particular, the Court found that, where there are identical class actions in multiple Canadian provinces, judicial comity demands a balance between courts in each jurisdiction making their own determinations and giving "considerable weight" to the decisions made in other Canadian jurisdictions.

Background

The Macaronies case addresses interchange fees paid by merchants in connection with the acceptance of Visa and Mastercard payments. One class proceeding proceeded through the Supreme Court of British Columbia while the substantially similar cases in other jurisdictions, including Alberta, stayed their actions.

On July 13, 2018, the Supreme Court of British Columbia, in the decision of Coburn and Watson's Metropolitan Home v. BMO Financial Group, 2018 BCSC 1183 (the "British Columbia Decision"), approved an application by the plaintiffs to certify the case for settlement purposes in connection with proposed settlements (the "Settlements") reached with certain defendants. Applications to approve the Settlements were also filed in Ontario, Quebec, Saskatchewan and Alberta. The Macaronies Decision stems from the Alberta application by the plaintiffs to approve the Settlements, which came before Associate Chief Justice Rooke on July 5, and August 23, 2018.

The Macaronies Decision

In his decision, Associate Chief Justice Rooke spoke at length about judicial comity, which is "the general principle that encourages the recognition in one country of the judicial act of another". He affirmed that on an application for certification for settlement purposes, judicial comity does not preclude each judge from considering the issues afresh and determining whether the settlement is fair and reasonable and in the best interest of the class; in fact, quite the opposite. The settlements before the court in multijurisdictional class actions, like the one at issue here, require approval by courts in each jurisdiction in which an action is filed. Therefore, as with any other case, each court has an independent obligation to review the settlement...