CANADA Law and Practice Contributed by: David Gadsden, John Pirie, Brendan O’Grady and Anton Rizor, Baker McKenzie
Multiple Proceedings If multiple persons bring two or more class proceed- ings concerning the same or similar subject matter, plaintiff’s counsel may bring a carriage motion/appli- cation asking the court to stay the other proceed- ings. In making this determination, the court decides which class proceeding best advances the claims of the class members efficiently and cost-effectively. The court will consider, among other factors: • the theory of the cases being advanced; • the relative likelihood of success of each proceed- ing; • the expertise and experience of counsel; and • the funding strategy for each proceeding. In many cases, plaintiff firms co-operate to avoid over- lap by restricting class definitions to particular prov- inces or by voluntarily staying one action in favour of another. 3.6 Case Management Powers of Courts A defining feature of class actions is the high degree of judicial supervision and case management exercised by the court. Generally, the same judge hears all motions before a common issues trial. Depending on the jurisdiction, the same judge could also hear the common issues trial. The case management judge has broad, statute- based discretion to make any order the court consid- ers appropriate, respecting the conduct of a proceed- ing to ensure its fair and expeditious determination; for this purpose, the court may impose such terms on the parties as it considers appropriate. This broad discre- tion can be applied in respect of, among other things: • pre-certification motions; • granting leave for the discovery or examination of non-representative parties; • sequencing of motions; • carriage motions; • the form of the notice of certification and opt-out mechanisms; • how class members participate; • settlement approval; and
• staying or severing related proceedings. 3.7 Length and Timetable for Proceedings The length and timeframe for class proceedings depend on the individual case, the nature of the claim, and the jurisdiction in which the class action is com- menced. Many factors influence the length and timeline of a class action, including: • the size of the class; • the number of defendants; • the complexity of the legal issues; • the timing of potential summary judgment motions; and • court availability. A class action’s life cycle will also depend on whether and when it is settled. Settlements are common after class actions are certified. The timing of settlements will also depend on the class size and the timing for the court’s approval of the settlement. In some provinces, a defendant can move for a man- datory dismissal of a class action proceeding for a delay if the certification motion is not brought within a specified timeframe. Class actions can, and often do, take years to resolve. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings Summary judgment motions are available to plaintiffs and defendants in class actions to dispose of the class action without trial. The party bringing the motion bears the burden of satisfying the court that there is no genuine issue requiring a trial to grant summary judgment. Such motions have been brought before, during and after certification, and even after discovery. Other preliminary motions can impact the life cycle of
a class action, including: • jurisdictional challenges; • motions to disqualify experts; and • motions to strike pleadings.
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