This is an excerpt from an article written by Siskinds Class Action lawyers Ron Podolny and Daniel Bach and originally published by the American Association for Justice.
Introduction
Counsel in Canada and the U.S. frequently pursue parallel class actions on the basis of identical allegations, against the same defendants. For instance, most defective consumer products that affect American consumers, also affect Canadians, and vice versa. Securities misrepresentation cases, likewise, often involve dual-listed companies, with shareholders on both sides of the border. By working together, counsel in both countries can maximize their strategic advantages to obtain access to documents and witnesses, create additional leverage and reduce expenses. Yet, with some notable exceptions, counsel fail to employ these cooperative strategies. In this paper, we try to outline some potential avenues for collaboration, and their benefits.
Brief Background – Canadian Class Actions Regime
Canada and the U.S. share a common legal culture and a generally similar civil litigation system. Proceedings in one country are mutually-intelligible to the other country’s lawyers, and, although Canada’s class action regime was introduced more recently, both countries now have an active class actions bar.
The first Canadian class action regime was introduced in 1978, in the civil law province of Quebec. Canada’s common law, English-speaking provinces did not have a class actions regime until 1992. Nevertheless, in the decades since its introduction, a number of high profile class actions in the medical device, pharmaceutical, securities, consumer protection and anti-trust fields have been launched. In particular, in the securities field, 60 unresolved actions are currently pending across Canada, representing more than $35 billion in total claims.
As in the U.S., Canadian class action statutes contemplate a certification motion. However, the statutory criteria for certification are easier to satisfy in Canada. In particular, Canadian class action legislation, in contrast to the U.S., does not contain the requirement that common issues predominate over individual issues and the Supreme Court of Canada has been very clear that certification is not a test on the merits and the “common issue” criterion is a “low threshold.”
These differences explain why several types of litigation which have proceeded as mass-torts in the U.S., including claims in respect of allegedly defective drugs and medical devices, are routinely certified as class actions in Canada.