New Dimensions Of Preferable Procedure: "Jurisdictional Preferability" And Multijurisdictional Class Proceedings

• Published date: 30 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Strategy, Industry Updates & Analysis, Trials & Appeals & Compensation
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr Craig Lockwood and Carla Breadon

In order to be certified, a proposed class proceeding must be deemed the "preferable procedure" for resolving the plaintiff's claims. The preferable procedure analysis takes on new dimensions where a proposed class proceeding is one among several overlapping proceedings commenced in other jurisdictions - an enduring trend that we have previously written about here and here. In recent years, professional bodies legislatures and courts have taken various measures to address how the preferability analysis changes in the context of multijurisdictional class proceedings, and when "jurisdictional preferability" should be assessed.

In Forster v. Monsanto Company, 2020 BCSC 1376, the Supreme Court of British Columbia considered these questions, in light of a new protocol designed to manage multijurisdictional class proceedings and related amendments to the Class Proceedings Act, RSBC 1996, c 50 (the "BC CPA"). Forster also provides insight on key distinctions between the legislative amendments to the BC CPA and the Ontario Class Proceedings Act, 1992, SO 1992, c 6 ("Ontario CPA") as they pertain to multijurisdictional class proceedings. We have previously written about the amendments to the Ontario CPA here.

Background

The plaintiff in Forster commenced a proposed class proceeding on behalf of a BC-only class, alleging that the defendants' herbicide caused illness in the plaintiff class (the "BC Proceeding"). Three parallel class proceedings had already been commenced on behalf of national classes in Ontario (the "Ontario Proceeding") and Nova Scotia (the "Nova Scotia Proceeding"), in addition to a Quebec-only class proceeding in Quebec. The most advanced proceeding was the Ontario Proceeding, where the plaintiff had served a certification record, and the certification motion was scheduled to be heard in February 2021.

Adoption of the Multijurisdictional Class Actions Protocol in provincial class proceedings legislation

In 2018, the Canadian Bar Association developed the Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions and the Provision of Class Action Notice [PDF] (the "Protocol"), with the goal of establishing standardized best practices for counsel and judges managing class proceedings with parallel actions in other provinces.

BC and Ontario have both adopted the Protocol and amended their respective class proceedings legislation accordingly. In 2018, the BC CPA was amended to explicitly provide that where there are parallel multijurisdictional proceedings, the court must consider whether the...