Exclusive Forum Selection in National Class Actions: A Common Issues Approach

• Author: Scott Maidment
• Pages: 133-153

133

exc lusi v e FORU M SELEC TION

IN N AT IONA L C L ASS ACT IONS:

A COMMON ISSUES APPROACH

Scott Maidment*

I have grown to see that the process in its highest reaches is not dis-

covery but creation; and that the doubts and misgivings, the hopes

and fears, are part of the travail of the mind, the pangs of death and

the pangs of birth, in which principles that have served their day

expire, and new principles are born.1

A. INTRODUCTION

This paper argues that forum non conveniens principles should be adapted

and applied to prohibit the prosecution of parallel national class actions

in more than one Canadian province. A national class action should pro-

ceed exclusively in that forum which has the most real and substantial

connection with the common issues that may arise in that proceeding.

With the enactment of class action legislation throughout the

Canadian provinces, the commencement of multiple duplicative or over-

lapping national class actions has become commonplace.2 In many cases,

duplicative class actions are commenced by a consortium of class counsel

acting in concert across provincial borders. In other cases, duplicative

class actions are commenced by class action law firms acting in competi-

tion with one another. In either circumstance, each firm of class counsel

* B.Comm., First Class Honours (Memorial University), LL.B. (Queen’s

University), LL.M. (London School of Economics). The author is a partner

at McMillan LLP in Toronto, where he is co-chair of the firm’s national class

action practice group. He appeared as counsel in the Englund v. Pfizer and

Sollen v. Pfizer cases referred to in this article.

1 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven, CT: Yale

University Press, 1921) at 166–67.

2 All Canadian provinces except Prince Edward Island have now enacted class

action legislation.

134 THE CANADIAN CLASS ACTION REVIEW

may seek to maximize its own participation in the action and thereby

maximize its share of associated fees.3

Faced with numerous instances of overlapping national class actions,

Canadian superior courts have adopted what may be called a “subclass

deference model” in response to disputes regarding the choice of forum.

Thus any court in which a national class action is brought will generally

refuse to engage in true forum selection. Instead, the court will generally

“defer” to the superior court of another province in respect of the sub-

class of persons residing in that other province.

This “deferential” approach is frequently justified on the basis of

judicial comity, as if comity were the fundamental value to be served by

the principles of forum selection. Judicial comity, however, is simply a

means of giving effect to the fundamental values of order and fairness

that underlie the common law approach to forum selection.4 By treat-

ing judicial comity as an end in itself, Canadian courts have begun to

undermine the values that comity is intended to serve. Instead of order

and fairness, the “subclass deference model” has produced disorder and

unfairness. It has also resulted in inefficiency, confusion, and uncertainty

for defendants and class members alike.

Law reform commissions have noted the need for reform in order to

alleviate these problems, and have called for legislative and other mea-

sures that would permit effective coordination and management of multi-

ple national class actions. Legislative reform holds little promise of relief,

however, because Canada’s constitution confers exclusive jurisdiction

over property and civil rights, and the administration of justice within the

provinces, upon the provincial legislatures.5 Administrative arrangements

among provincial superior courts, while laudable, are ultimately unen-

forceable to deprive a determined litigant of the right to pursue litigation

3 It is not suggested that the motive of profit maximization on the part of indi-

vidual law firms is generally improper, unethical, or contrary to the public

interest. Indeed, the profit motive facilitates access to justice by creating an

incentive for class counsel to pursue actions that might not otherwise be pur-

sued. Nevertheless, when the profit motive for individual law firms is com-

bined with an absence of effective forum selection rules, this encourages the

commencement of duplicative national class actions that offer no marginal ben-

efit to class members and encourages practices that create unnecessary chaos,

confusion, and cost.

4 “[O]ne must exphasize that the ideas of ‘comity’ are not an end in themselves

but are grounded in notions of order and fairness to participants in litigation

with connections to multiple jurisdictions,” Hunt v. T&N plc, [1993] 4 S.C.R.

289 at 325 [Hunt].

5 Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 92, paras. 13 & 14.