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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

June 2011

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A CANADIAN BAR ASSOCIATION TASK FORCE REPORT Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions A Consultation Paper prepared by the CBA National Task Force on Class Actions June 2011 © Canadian Bar Association 865 Carling Avenue, Suite 500 Ottawa, ON K1S 5S8 Tel.: (613) 237-2925 / (800) 267-8860 Fax: (613) 237-0185 E-mail: [email protected] Home page: www.cba.org Website: www.cba.org/CBA/ClassActionsTaskForce/Main ALL RIGHTS RESERVED No portion of this paper may be reproduced in any form or by any means without the written permission of the publisher.

Copyright © 2011 Canadian Bar Association

TABLE OF CONTENTS Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

I. II. III.

INTRODUCTION ............................................................... 1 BACKGROUND ................................................................ 3 THE JUDICIAL PROTOCOL ............................................. 6

A. B. C. D. Notice ........................................................................................ 7 Case Management .................................................................... 7 Settlement Approval .................................................................. 8 Relationship with Other Protocols.............................................. 8

IV.

CONSULTATION .............................................................. 8

Appendix 1 ­ CBA National Task Force on Class Actions ....... 10 Appendix 2 ­ CBA Protocol ..................................................... 11 Appendix 3 ­ ABA Protocols ................................................... 18

CBA National Task Force on Class Actions

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

I. INTRODUCTION

Over the past 20 years, class actions have played an increasingly significant role in the Canadian legal system. The procedure, which was once available only in Quebec, is now provided for by statute in all the provinces except for Prince Edward Island.1 The wider availability of class actions has resulted in both benefits and challenges. The benefits have included the ability of the courts in each province to deal with large-scale disputes that occur within the province, such as claims against local businesses or challenges to provincial government conduct. The greatest challenge lies in the coordination of large-scale disputes that, by their very nature, tend to disregard both provincial and national boundaries, such as claims involving products liability or financial services, and therefore are likely to result in overlapping class actions being commenced in two or more provinces. In February 2010, the Canadian Bar Association established a National Task Force on Class Actions to address those challenges. The Task Force was given a three-part mandate: Study and explore the possibility of the development of a judicial protocol with the aim to:

Allow for communication among judges in overlapping class actions proceedings Coordinate and harmonize activities in proposed overlapping class proceedings in order to maximize efficiency, reduce costs and avoid the duplication of effort; Honour the independence and integrity of the superior courts while promoting inter-provincial cooperation and respect for comity;

1

No Canadian territory has class action legislation.

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

Implement a framework of general principles to address basic administrative issues arising out of national and multijurisdictional class actions; and Provide for nationally-accepted carriage motions.

Develop proposals for amendments to legislation to facilitate the administration of national and multijurisdictional class actions. Liaise with members and organizations regarding matters in the scope of the mandate. The Task Force includes leading Canadian class action plaintiff and defence counsel from across the country, as well as general counsel. The judiciary is represented by judges from the courts of Ontario, Quebec, British Columbia, Saskatchewan, New Brunswick and the Federal Court.2 The Task Force also consults distinguished legal scholars as the need arises. In April 2010, the Task Force established two committees: the protocol committee and the legislative committee. The mandate of the protocol committee was to draft a judicial protocol for adoption by all provincial and territorial superior courts to govern overlapping, multijurisdictional class actions. Once the Judicial Protocol is successfully approved and in use, the legislative committee will consider possible legislative changes that will assist in addressing this problem on a permanent basis. In April 2011, the protocol committee submitted the attached draft document, "Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions" (the Judicial Protocol) to the Task Force. Pursuant to its mandate, the Task Force is now seeking the views of CBA members and other interested parties on the terms of the Judicial Protocol. The purpose of the consultation is to ensure that the Judicial Protocol will meet the needs of class action counsel, the judiciary, and members of the public affected by class action litigation, and will be effective in solving some of the difficult issues presented by multijurisdictional class actions. This Consultation Paper outlines the history of the problems with multijurisdictional class actions, attempts at finding solutions, and the considerations of the Task Force in creating the Judicial Protocol, to assist in situating the Protocol in the current legal landscape and providing a context for those responding to it.

2

See Appendix 1 for a list of members of the Task Force.

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II.

BACKGROUND

Since 1995, when the Ontario Superior Court found that the province's class proceeding legislation permitted the certification of extra-provincial classes on an opt-out basis,3 there has been a lively debate about national and multijurisdictional class actions. Some argue that the certification of extra-provincial classes on an opt-out basis was constitutionally unsound.4 Others contended that the certification of national classes was necessary to accomplish the goals of class actions, including judicial efficiency and access to justice.5 With the wider availability of class actions, including multijurisdictional class actions, the discussion turned from constitutional and doctrinal issues towards practical solutions to the problem of coordinating multiple proceedings. Coordinating class actions in three provinces on a relatively informal basis, as had been done in the 1990s, was manageable. Coordinating class actions in as many as nine provinces proved a more daunting task. Reports prepared for the Uniform Law Conference of Canada (ULCC) in 2005 and 2006 suggested several changes intended to resolve the problem of overlapping class actions, including the establishment of an online National Class Actions Database. The key recommendations of the ULCC reports were that all provinces should change their legislation to permit the certification of multijurisdictional class action on an opt-out basis and require that notice be given to counsel in similar class actions in other provinces before a certification motion was heard. The expectation was that if there was a level playing field among provinces and systems in place to ensure that courts and counsel knew what was happening in other jurisdictions, the usual principles of comity could then be relied on to avoid and resolve conflicts.6

3 4

Nantais v. Teletronics Proprietary (Canada) Ltd. (1995), 127 D.L.R. (4th) 552. See, for example, Stephen Lamont, "The Problem of the National Class: Extra-territorial Class Definitions and the Jurisdiction of the Court" (2001) 24 Advocates' Q. 252; S. Gordon McKee & Jeff Galway, "Constitutional Considerations Concerning National Class Actions" in Law Society of Upper Canada: Special Lectures 2001­Constitutional and Administrative Law (Toronto: Irwin Law, 2002) 27; F. Paul Morrison, Eric Gertner & Hovsep Afarian, "The Rise and Possible Demise of the National Class in Canada" (2004) 1 Can. Class Action Rev. 67. See, for example, Craig Jones, Theory of Class Actions, (Toronto: Irwin Law, 2003) Uniform Law Conference of Canada, Civil Law Section, "Report of the Uniform Law Conference of Canada's Committee on the National Class Action and Related Interjurisdictional Issues: Background Analysis" (9 March 2005) online: Uniform Law Conference of Canada http://www.ulcc.ca/en/poam2/National_Class_Actions_Rep_En.pdf; Uniform Law Conference of Canada, Civil Law Section, "Supplementary Report on Multijurisdictional Class Proceedings in Canada (August 2006) online: Uniform Law Conference of Canada http://www.ulcc.ca/en/poam2/National_Class_Actions_Supplementary_ Report_En.pdf.

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

One possibility, raised and rejected by the ULCC committee, but later considered in two academic papers, was the creation of a body modeled on the U.S. Federal Court's Judicial Panel on Multi-District Litigation (the MDL Panel). Under the legislation that governs procedure before the U.S. Federal Court, the MDL Panel is granted the power to transfer to a single court all actions in the Federal Court system that have one or more questions of fact in common. That transferee court is then responsible for all pre-trial procedures, which may include the certification or settlement of any class action.7 The bodies proposed for Canada would have much more modest powers and would be limited to determining the appropriate forum (or fora) for a national (or multijurisdictional) class action. However, granting even those powers would require significant and coordinated legislative change.8 There has been limited success in implementing the ULCC proposals. In 2008, Saskatchewan amended its class action legislation to reflect the recommendations of the ULCC report by permitting the certification of extra-provincial classes and requiring that counsel in parallel actions be given notice of certification applications. Nova Scotia's Class Proceedings Act, which came into force in 2008, also appears to permit the certification of national or multijurisdictional classes.9 The National Class Action Database was established by the CBA, but filing documents with the Database remains voluntary in most jurisdictions. The need for a workable mechanism to deal with parallel and competing multijurisdictional class actions was underlined by events surrounding Vioxx, an anti-inflammatory drug that was withdrawn from the market in 2004 after studies raised health concerns. Within three months of the drug being withdrawn, more than 30 class actions were filed across the country. By 2006, cooperation between counsel led to the creation of a national consortium including most, but not all, of the counsel involved in the litigation. A dispute arose over carriage of the national class action between the consortium and Saskatchewan counsel, which was decided in the consortium's favour by the Ontario court. The following series of events, which included the amendment of the Saskatchewan legislation to permit the certification of extra-provincial

7 8

28 U.S.C. § 1407. Chris Dafoe, "A Path Through the Class Action Chaos: Selecting the Most Appropriate Jurisdiction with a National Class Action Panel" (2006) 3 Can. Class Action Rev. 541 (2006); Janet Walker, "Recognizing Multijurisdiction Class Action Judgments Within Canada: Key Questions--Suggested Answers" (2008) 46 CBLJ 450 at 465. Class Proceedings Act, S.N.S. 2007, c. 28. In a recent decision, the Nova Scotia Court of Appeal, in striking out the claims of four non-residents put forward at representative plaintiffs, expressly declined to rule on whether national classes are available in Nova Scotia. See Bellefontaine v. Purdue Frederick Inc., 2010 NSCA 58 at para. 2.

9

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opt-out classes, led to the certification of overlapping multijurisdictional class actions in Ontario and Saskatchewan.10 Although the conflict was resolved by an appeal decided on grounds other than jurisdiction, these cases made it clear that competing multijurisdictional class actions were more than a theoretical possibility and could not be entirely avoided through reliance on traditional principles of comity.11 There was a need for some way for courts to coordinate class actions between provinces. Justice Cullity of the Ontario Court offered the following comment: If decisions of provincial courts on carriage motions are not to be respected throughout Canada, this merely underlines - and makes even more urgent - the need for an agreement or protocol among the superior courts that will provide for nationally-accepted carriage motions and determine the jurisdiction in which such motions will be heard.12 The Supreme Court of Canada has also taken note of the difficulties that may arise with certification of national classes. Justice Lebel, writing for the Court in Canada Post Corp. v. Lépine, commented: As can be seen in this appeal, the creation of national classes also raises the issue of relations between equal but different superior courts in a federal system in which civil procedure and the administration of justice are under provincial jurisdiction. This case shows that the decisions made may sometimes cause friction between courts in different provinces. This of course often involves problems with communications or contacts between the courts and between the lawyers involved in such proceedings. However, the provincial legislatures should pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space. It is not this Court's role to define the necessary solutions. However, it is important to note the problems that sometimes seem to arise in conducting such actions.13

10

This was the result of a series of decisions in Ontario and Saskatchewan, including: sub. nom. Setterington et al v. Merck Frosst Canada Ltd. et al, [2006] O.J. No. 376 (S.C.J.) (Ontario carriage motion); Wuttunee v. Merck Frost Canada Ltd., 2008 SKQB 78 (certification of Saskatchewan class action); Wuttunee v. Merck Frosst Canada Ltd., 2008 SKQB 229 (Saskatchewan class action converted to a multijurisdictional class action include extra-provincial classes, following changes to the Saskatchewan legislation ); Tiboni v. Merck Frosst Canada Ltd. (2008), 295 D.L.R. (4th) 32 (Ont. S.C.J) (certification of Ontario multijurisdictional class action); Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43 (certification of Saskatchewan action overturned on class definition issues); Merck Frosst Canada Ltd. v. Wuttunee, 2009 CanLII 57570 (leave to appeal and leave to cross-appeal to S.C.C. dismissed.) Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43. Tiboni v. Merck Frosst Canada Ltd. (2008), 295 D.L.R. (4th) 32 at para. 41. Canada Post Corp. v. Lépine, 2009 SCC 16 at para. 57.

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

From the earliest days of class actions to the present, counsel and courts have worked together informally to coordinate multiple class proceedings. On at least two occasions, joint hearings of several courts have been held to approve settlements. In 2007, nine judges gathered in Calgary to approve the settlement of both class actions and individual claims relating to Indian residential schools. In 2008, judges from nine provinces convened via videoconference (in what one counsel described as a "Hollywood Squares" formation) to approve the settlement of a class action that concerned tainted pet food. In both cases, the joint hearing was held at the request of counsel. What has been missing, however, is a more formal framework through which courts, acting on their own initiative, can work together to manage parallel proceedings and thereby avoid the conflicts and controversy that arose with the Vioxx litigation. In mandating the Task Force to develop a judicial protocol, the CBA seeks to provide the courts with just such a framework for cooperation, while still respecting the jurisdiction of individual courts over matters such as certification, carriage and other substantive matters.

III.

THE JUDICIAL PROTOCOL

In the section below, we discuss what the Judicial Protocol is intended to do. It is just as important, however, to make clear what the Judicial Protocol is not intended to do. It is not intended to resolve the vexed question of whether national classes are constitutionally valid, a debate that has recently engaged some of Canada's leading constitutional and conflict of laws scholars.14 It is not intended to provide a mechanism by which the proper jurisdiction can be determined, or to determine carriage on a national basis. It does not create the equivalent of the American MDL Panel, with sweeping power to assign all pre-trial matters to a single court, or even the Canadian equivalent, with the power to act as a sort of class action "traffic cop" or tie-breaker. Early in its deliberations, the Task Force explored a suggestion that the Federal Court play a role in resolving conflicts in cases of overlapping multijurisdictional class actions. However, after obtaining an opinion from Professor Patrick Monahan on the constitutional difficulties

14

Peter W. Hogg & S. Gordon McKee, "Are National Class Actions Constitutional?" (2010) 26 N.J.C.L. 279; Janet Walker, "Are National Class Actions Constitutional?--A Reply to Hogg and McKee", (2010) 48 O.H. L.J. 95; Bouchard, Mathieu and Colin K. Irving, "National Opt Out Class Actions, A Constitutional Assessment" (2009) 26 National Journal of Constitutional Law 111.

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that arrangement might present, the Task Force confirmed its decision to give priority to finding less constitutionally contentious ways to address the problem that would not require legislative amendment in all provincial jurisdictions. The Judicial Protocol relies on existing provisions in the various provincial class proceeding statutes to establish a system in which multiple and potentially overlapping class actions can move through two or more courts in an orderly and predictable manner. It does so by setting out terms that deal with key matters ­ notice, case management, and settlement approval ­ and by permitting the court to agree to assign certain functions, including aspects of case management and the administration of settlements, to a single judge.

A.

Notice

The notice provisions of the Judicial Protocol provide for the creation of a Notification List that ensures that all counsel or self-represented parties in class actions involving a particular subject matter are made aware of steps being taken in other class actions dealing with that subject matter. The goal of this provision is to provide for the more efficient sharing of information and reduce the risk of inconsistent decisions between courts. The Notification List is intended to ensure that counsel and parties in parallel class actions are kept abreast of all significant developments in other proceedings dealing with the same subject matter. It offers more detailed information that can be provided through the Class Action Database, and provides for more thorough sharing of information than has been provided for in, for example, the ULCC proposal.

B.

Case Management

The case management provisions of the Judicial Protocol are intended to allow the courts to communicate for the purpose of coordinating the progress of the proceedings. This coordination can be accomplished either by issuing a Multijurisdictional Case Management Order on terms agreed to by all the courts, or by appointing a Multijurisdictional Case Management Judge. While the Judicial Protocol, like the legislation establishing the MDL Panel, anticipates the appointment of a single judge to be responsible for case management, the responsibilities of the judge appointed under the Judicial Protocol would be much more limited than that of the judge who is given the same role by the MDL Panel.

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

The Multijurisdictional Case Management Judge would not have the power to deal with matters such as carriage, jurisdiction, certification or authorization. These motions would remain in the jurisdiction of the court in which each parallel class action was commenced. Instead, the Multijurisdictional Case Management Judge would be responsible for ensuring that motions in each court were scheduled in a manner to avoid inconsistent or conflicting decisions whenever possible.

C.

Settlement Approval

The settlement approval provisions allow the courts to convene a joint hearing, if that is deemed appropriate by all the courts, to approve settlement of class actions commenced in more than one province. The provisions also provide guidance on contents of the notice sent to class members, a term designed to ensure that, wherever possible, all class members in the different class actions would receive identical notices of the settlement. The settlement provision also allows the appointment of a single judge to administer the settlement.

D.

Relationship with Other Protocols

The Judicial Protocol is also intended to work in harmony with two protocols recently developed by an American Bar Association Task Force to deal with notice and court-to-court communications in international cross-border class actions.15 Copies of these protocols are attached as an appendix to this consultation document.

IV.

CONSULTATION

The purpose of the consultation is to allow individuals and organizations with expertise and experience in the area of class actions to offer their views and suggestions on the Judicial Protocol. As indicated above, the Judicial Protocol is intended to provide practical solutions to problems that may arise in multijurisdictional class actions; it is, therefore, important that

15

The two protocols are "Protocol on Court-to Court Communication in Canada ­ U.S. Cross-Border Class Action" and "Notice Protocol: Coordinating Notice(s) to the Class(es) in Multijurisdictional Class Proceedings." These protocols were recently adopted by the ABA Litigation Section Council. The ABA Task Force that drafted the ABA protocols included both Canadian and American lawyers, academics and judges including Chief Justice of Ontario, Warren Winkler, Justice Louis Lacoursière from Quebec, class action counsel Harvey Strosberg, Larry Lowenstein, Mike Eizenga and Professor Janet Walker.

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those who may have to deal with its provisions provide their view on how the protocol might work in practice. During discussion of the Protocol, questions arose in several areas, such as whether a model order might be appropriate and the appropriate scope of powers that should be exercised by a Multijurisdictional Case Management Judge. The Task Force welcomes comments on any issue or concerns that you may have about the Protocol, including those issues described above. It is particularly interested in hearing whether you anticipate any challenges in implementing the Judicial Protocol in the jurisdiction in which you practice. If you envisage such challenges, please explain. Comments may be sent to [email protected] To have your comments considered in finalizing the Protocol, please provide them by July 8, 2011.

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

Appendix 1 ­ CBA National Task Force on Class Actions The Task Force Members are: Chair Sylvie M.T. Rodrigue, Chair - Ogilvy Renault LLP, Montreal and Toronto Members Chief Justice Warren K. Winkler, Chief Justice of Ontario, Court of Appeal for Ontario, Toronto Chief Justice Robert J. Bauman, Supreme Court of British Columbia, Vancouver Chief Justice Robert D. Laing, Court of Queen's Bench of Saskatchewan, Saskatoon Justice Yves de Montigny, Federal Court, Ottawa Justice Louis Lacoursière, Cour supérieure du Québec, Montréal Justice Jean-Paul Albert Ouellette, Cour du Banc de la Reine du NouveauBrunswick Marie Audren, Borden Ladner Gervais LLP, Montréal Kirk M. Baert, Koskie Minsky LLP, Toronto Daniel Belleau, Belleau Lapointe S.A., Montréal Andrew D. Borrell, Fasken Martineau DuMoulin LLP, Vancouver Ward K. Branch, Branch MacMaster, Vancouver Jacqueline A. De Gagné, Head, Law & Patents, Toronto D. Brian Foster, Fraser Milner Casgrain LLP, Calgary Rodney L. Hayley, Lawson Lundell LLP, Vancouver André Lespérance, Lauzon Bélanger, Montréal S. Gordon McKee, Blake, Cassels & Graydon LLP, Toronto Simon V. Potter, McCarthy Tétrault S.E.N.C.R.L., s.r.l, Montréal Harvey T. Strosberg, Q.C., Sutts, Strosberg LLP, Windsor (ON) Raymond F. Wagner, Wagner & Associates, Halifax Research Director Chris Dafoe CBA Staff Kerri A. Froc, Staff Lawyer, Law Reform and Equality

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Appendix 2 ­ CBA Protocol

DRAFT CANADIAN JUDICIAL PROTOCOL FOR THE MANAGEMENT OF MULTI-JURISDICTIONAL CLASS ACTIONS

PREAMBLE The purpose of this protocol is to make use of existing class action legislation and the Rules of Court / Rules of Civil Procedure in various provincial jurisdictions to facilitate the management of multijurisdictional class actions. Each provincial class action statute contains a provision permitting a court to make such orders as it considers appropriate for the fair and expeditious conduct of the action. Most of these statutes permit the court to make such orders on its own initiative or on the motion of a party of a class member. The various statutory provisions can be found on the Schedule "A" attached to this protocol. The jurisdiction found in these provisions permits a court to grant an order for the case management of a pending class action within the province. This protocol establishes a mechanism by which class actions may be coordinated. The protocol provides for two types of orders for the efficient conduct of multijurisdiction class actions: Multijurisdictional Case Management Orders and Multijurisdictional Settlement Orders. Under the Multijurisdictional Case Management Order, a judge in one of the affected jurisdictions may be designated as the case management judge with responsibility for the coordination of all pending proceedings in the various courts. The Multijurisdictional Class Settlement Approval Order is intended to facilitate the coordination of settlement approval hearings where a joint settlement is proposed for class actions.

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

DEFINITIONS 1. In this Protocol: a) "Action" means a putative, certified or authorized class action in which the subject matter is the same as the subject matter of a putative, certified, authorized class action in two or more provinces. b) "Court" means a court in a jurisdiction in which an Action is filed. c) "Counsel" includes parties that are self-represented. APPLICATION 2. Where a court intends to apply this Protocol (in whole or in part), counsel shall be given notice and an opportunity to be heard on the sections of this Protocol to be employed. Where this Protocol is adopted in whole or in part following such a hearing, an order shall issue to that effect. NOTICE OBLIGATIONS 3. All parties to an Action shall advise the Court of any other Action of which they are aware. 4. Plaintiff counsel shall post the pleadings in their Action on the Canadian Bar Association Class Action Database at www.cba.org/classaction. 5. A Notification List shall be created by counsel listing the names of all counsel, with appropriate contact information, in all Actions and such list shall be provided to the Court. 6. In the event that a party to the Action is moving for a Multijurisdictional Case Management Order, notice shall be given to the Notification List in such manner as the Court may direct and thereafter, the procedure set out in paragraphs 8-17 of this Protocol shall apply. 7. In the event that no party moves for a Multijurisdictional Case Management Order, all motions made by a party shall be on notice to the Notification List. CASE MANAGEMENT PROCEDURE 8. Any party to an Action may bring a Motion for a Multijurisdictional Case Management Order. 9. Any party bringing such a motion shall serve all affected parties in each jurisdiction and file the materials in each Court.

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10. The motion shall be heard orally unless all parties consent to a hearing in writing. 11. An oral hearing shall be conducted in a manner that will permit all parties and all judges to participate in the hearing. This may be effected by video link or other means. 12. Any party who may be subject to the proposed order may appear at the hearing of the Motion. Such appearance will not constitute an attornment to the jurisdiction for any purpose other than the determination of the Motion. 13. Once all materials relating to a Motion for a Multijurisdictional Case Management Order have been filed with the Courts, those Courts may communicate for the purpose of determining: a) whether the Courts are in agreement that a uniform Multijurisdictional Case Management Order should be issued; b) The content of a Multijurisdictional Case Management Order; c) The manner in which the Multijurisdictional Case Management Order is to be administered; or d) Any other issue relevant to the Motion for Multijurisdictional Case Management. 14. Communication between Courts for the purposes set out in paragraph 13, or after the hearing of the motion, may take place in the absence of counsel. 15. If all Courts are in agreement that a Multijurisdictional Case Management Order should issue, a Multijurisdictional Case Management Order shall be issued in each jurisdiction and may be in any form and in any manner which is, in the opinion of all Courts, just and expeditious. 16. A Multijurisdictional Case Management Order may designate a Judge of any Court as a Multijurisdictional Case Management Judge for the purposes of case management of the Actions. 17. A Multijurisdictional Case Management Judge may, if the Order so provides, determine the scheduling of all motions pertaining to the Actions before all affected Courts, and may impose timelines on all aspects of the Actions in all jurisdictions. For clarity, the Order shall not empower the Case Management Judge to determine motions relating to carriage, jurisdiction or certification or authorization of a case in other than the jurisdiction in which he or she presides.

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions

SETTLEMENT APPROVAL 18. Where there is a joint settlement of the Actions which are subject to a Multijurisdictional Case Management Order, the parties shall proceed by way of a Motion for Multijurisdictional Class Settlement Approval served on all parties and filed in all Courts. 19. A Motion for Multijurisdictional Class Settlement Approval shall include a proposed notice to class members suitable for use in all jurisdictions. The notice should include the following information: a) a summary of the claims, relief sought, defences pleaded and any relevant procedural history; b) a definition of the class and any sub-classes and an estimate of the size of each class or subclass; c) a summary of the class actions which are the subject of the Motion for Multijurisdictional Class Settlement Approval, and a description of any other related class actions pending of which counsel or any party is aware; d) information on the essential terms of the proposed settlement, including i. ii. iii. iv. v. vi. the nature and amount of relief, the nature and bases of any non-monetary benefits; the procedures for allocating and distributing settlement funds, the method for filing a proof of claim; the locations where class members can obtain a copy of or examine the settlement agreement and other relevant materials; information, if practical, that may enable class members to calculate or estimate their individual recoveries; e) the options open to the class members and the implications of each option (including, if applicable, opting out, participating, objecting, submitting a claim or doing nothing), along with the deadlines for taking any action; f) a summary of any compensatory or other benefits payable to or requested by the class representatives;1 g) a summary of the maximum amounts sought by class counsel for fees, including disbursements, reimbursement of expenses and applicable taxes and the bases for which those amounts are claimed;2 h) the time and place of the hearing to consider approval of the settlement and the methods by which class members may object to the settlement, or the fees sought by class counsel, or

1 2

Ibid., §21.312 at 295. Ibid., §21.312 at 295.

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i) the method for objecting to (or, if permitted, for opting out of) the settlement, including a statement that the class members have the right to object to the settlement, and/or application for fees and/or the distribution of any remaining balance of funds; j) a statement that the settlement will bind all class members who have not opted out (if it is an opt-out class action); and k) the address and phone number of class counsel and the appointed Claims Administrator and an explanation how to make inquiries of either. 20. Once all materials relating to a Motion for Multijurisdictional Class Settlement Approval have been filed in all jurisdictions where Multijurisdictional Class Settlement Approval is sought, the Courts may communicate for the purpose of determining: a) The scheduling of approval hearings, including any fairness hearings; b) Whether the Courts agree that a uniform Multijurisdictional Class Settlement Approval Order should be issued; c) The content of a Multijurisdictional Class Settlement Approval Order; d) The manner in which the Multijurisdictional Class Settlement Approval Order is to be administered; e) The manner and form in which notice to class members will be provided; or f) Any other issue relevant to the Motion for Multijurisdictional Class Settlement Approval. 21. Communication between Courts for the purposes set out in paragraph 19, or after the hearing of the motion, may take place in the absence of counsel. 22. Where it is determined by all courts that the Settlement Approval hearing or the Fairness hearing will be held jointly, such hearings shall be conducted in a manner that will permit all parties and all judges to participate in the hearings. This may be effected by video link or other means. 23. A Multijurisdictional Class Settlement Approval Order may be issued in any form and in any manner which is, in the opinion all Courts, just and expeditious. 24. A Multijurisdictional Class Settlement Approval Order may designate a Judge of any Court as Designated Settlement Administration Judge. 25. A Designated Settlement Administration Judge may, if the Order so provides, determine any dispute arising from the Settlement Agreement, regardless of the jurisdiction in which that dispute arises, and may make such orders as are just and expedient for the orderly administration of the Settlement Agreement.

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Consultation Paper: Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions Schedule "A" to the Judicial Protocol Statutory Provisions Permitting the Court to Determine the Conduct of Class Actions

Alberta The Court may at any time make any order it considers appropriate respecting the conduct of a class proceeding to ensure the fair and expeditious determination of the proceeding and, for that purpose, may impose on one or more of the parties any terms or conditions that the Court considers appropriate. Class Proceedings Act, S.A. 2003, c. C-16.5, s. 13(1) British Columbia The court may at any time make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms it considers appropriate. Class Proceedings Act, R.S.B.C. 1996, c. 50, s.12 Manitoba The court may at any time make any order that it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms it considers appropriate. Class Proceedings Act, C.C.S.M. c. C130 s. 12 New Brunswick The court may at any time make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms or conditions the court considers appropriate Class Proceedings Act, S.N.B. 2006, c. C-5.15, s. 14 Newfoundland and Labrador Notwithstanding section 12 , the court may make an order it considers appropriate respecting the conduct of a class action to ensure a fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms it considers appropriate. Class Actions Act, S.N.L. 2001, c. C-18.1, s.13 Nova Scotia The court may at any time make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for that purpose, may impose on one or more of the parties the terms or conditions the court considers appropriate. Class Proceedings Act, S.N.S. 2007, c. 28, s.15

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Ontario The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate. Class Proceedings Act, 1992, S.O. 1992, c. 6, s.12 Quebec The court may, at any stage of the proceedings in a class action, prescribe measures designed to hasten their progress and to simplify the proof, if they do not prejudice a party or the members; it may also order the publication of a notice to the members when it considers it necessary for the preservation of their rights. Code of Civil Procedure, R.S.Q. c. C-25, s. 1045 Saskatchewan The court may, at any time, make any order it considers appropriate respecting the conduct of a class action to ensure a fair and expeditious determination and, for that purpose, may impose on one or more of the parties any terms it considers appropriate. Class Actions Act, S.S. 2001, c. C-12.01, s.14

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Appendix 3 ­ ABA Protocols

NOTICE PROTOCOL: COORDINATING NOTICE(S) TO THE CLASS(ES) IN MULTIJURISDICTIONAL CLASS PROCEEDINGS Protocols of General Application 1. 2. Compliance. The Form of Notice must satisfy applicable constitutional, statutory and procedural requirements of each relevant jurisdiction. Plain Language. Any notice given to class members should use plain and clear language, and not be overly technical or legalistic. Laypersons reading the notice should be able to understand how the class proceeding will affect their rights.1

Commentary: Demographics of Notice Recipients. In devising the content of and means by which notice is given, the parties and the courts should consider the demographic composition of the class (including age, physical or mental disability, language, literacy, geographical setting or culture).2 In particular, if any of the class members reside in Canada, notice should be provided in French and English. Notice to French-speaking class members should include publications that will reach French-speaking Canadians outside Québec.3

3.

Purpose. The purpose of the notice is to provide information to class members.4 The notice should not be an advocacy piece for class or defence counsel, nor should it contain opinions regarding the likelihood of success of the action. Adapt Notice to Medium. Where notice is given in multiple media, the content of each notice should be adapted to be appropriate to that medium; however, there should be at least one "long-form" of notice available to class members that complies with section 5 of this Protocol.

4.

Protocols Applicable to Class Certification 5. Contents. A long-form notice given in respect of certification of a class proceeding should generally contain:

1

Currie v. McDonald's Restaurants of Canada Ltd. et al. (2005), 74 O.R. (3d) 321 (C.A.) [Currie]; Fed. R. Civ. P. 23(c)(2)(B) [FRCP] ("the notice must concisely and clearly state in plain, easily understood language..."); Québec's Code of Civil Procedure, R.S.Q. c. C-25, Book IX, art. 1046 [Québec CCP] ("Every notice that must be given to the members must be written in plain language that will be easily understood by the persons to whom it is addressed..."). Charles M. Wright & Luciana P. Brasil, "The Importance of `Schedule F': How Real Access to Justice is Driven by Notice and Claim Forms", (Paper Presented to the 5 th Annual Symposium on Class Actions, Toronto, April 10-11, 2008) at 4 [Wright & Brasil]. Wright & Brasil, ibid. at 7-8 ("[a]t a minimum, notices which are not circulated in both official languages [in Canada] should not be considered effective..."); Manual for Complex Litigation, Fourth (2004), §21.311 at 290, online: Federal Judicial Center <http://www.fjc.gov/public/pdf.nsf/lookup/mcl4.pdf/$file/mcl4.pdf> [MCL 4th] ("[n]otice may be published in more than one language if appropriate to the demographics of the class"). Cotter v. Levy (2000), 95 A.C.W.S. (3d) 810 (Ont. S.C.J.).

2

3

4

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(a)

a description of the proceeding, including the names of the representative plaintiffs, the names of opposing parties and counsel, a summary of the nature of the action and the parties' claims and defences, the class definition, the common issues to be determined and the damages or other relief sought,5 the events giving rise to the case, and relevant procedural history; a description of any other class actions of which counsel6 or their client(s) are aware7 involving or arising out of (in whole or in part) the same claims or events as in the case before the Court and in which an alleged or certified class's membership includes some or all of the members of the class in the case that is the subject of the notice (a "Related Class Action"); whether a right to opt out of the proceeding is available and, if so, a statement about the manner and timeframe in which class members may opt out of the proceeding;8 if applicable, a description of the potential9 financial consequences of the proceeding to class members; a summary of any agreements or understandings with class counsel regarding fees and disbursements, including contingency fee arrangements;10

(b)

(c)

(d) (e)

5

FRCP, supra note 1 at r. 23(c)(2)(B)(i)-(iii); Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6, at s. 17(6)(a) [Ontario CPA]; Alberta Class Proceedings Act, S.A. 2003, c. C-16.5 at s. 20(6)(a) [Alta. CPA]; British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50 at s. 19(6)(a) [B.C. CPA]; Manitoba Class Proceedings Act, C.C.S.M., c. C130 at s. 19(6)(a) [Manitoba CPA]; New Brunswick Class Proceedings Act, S.N.B. 2006, c. C5.15 at s. 21(6)(a) [N.B. CPA]; Newfoundland Class Actions Act, S.N.L. 2001, c. C-18.1 at s. 19(6)(a) [Nfld. CAA]; Nova Scotia Class Proceedings Act, N.S. 2007, c. 28 at s. 22(6)(a) [N.S. CPA]; Saskatchewan, Class Actions Act, S.S. 2001, c. 12.01 at s. 22(1)(a) [Sask. CAA]; Québec CCP, supra note 1 at art. 1006 (a) & (b); Federal Court Rules, SOR/98-106 at r. 334.32(5)(a) [FCR]. "Counsel" includes parties who are self-represented. Canada Post v. Lépine, [2009] 1 S.C.R. 549, 2009 SCC 16 at para. 45(inadequate notice of certification and settlement where "Those who prepared it did not concern themselves with the situation resulting from the existence of a parallel class proceeding..."). FRCP, ibid. at r. 23(c)(2)(B)(v)-(vi); Ontario CPA, supra note 5 at s. 17(6)(b); Alta. CPA, supra note 5 at ss. 20(6)(b); B.C. CPA, supra note 5 at ss. 19(6)(b) and (c); Manitoba CPA, supra note 5 at s. 19(6)(b); N.B. CPA, supra note 5 at ss. 21(6)(b) and (c); Nfld. CAA, supra note 5 at ss. 19(6)(b) and (c); N.S. CPA, supra note 5 at s. 22(6)(b); Sask. CAA, supra note 5 at s. 22(1)(b); Québec CCP, supra note 1 at art. 1006(e); and FCR, supra note 5 at r. 334.32(5)(b) . The narrower adjective "potential" was chosen to describe the financial consequences that ought to be disclosed, although the following Canadian legislation requires the disclosure of "possible financial consequences": Ontario CPA, supra note 5 at s. 17(6)(c); Alta. CPA, supra note 5 at s. 20(6)(f); B.C. CPA, supra note 5 at s. 19(6)(d); Manitoba CPA, supra note 5 at s. 19(6)(e); N.B. CPA, supra note 5 at s. 21(6)(f); Nfld. CAA, supra note 5 at s. 19(6)(f); N.S. CPA, supra note 5 at s. 22(6)(c); Sask. CAA, supra note 5 at s. 22(1)(f); Québec CCP, supra note 1 at art. 1006(f); and FCR, supra note 5 at r. 334.32(5)(c) . Ontario CPA, supra note 5 at s. 17(6)(d); Alta. CPA, supra note 5 at s. 20(6)(e); B.C. CPA, supra note 5 at s. 19(6)(e); Manitoba CPA, supra note 5 at s. 19(6)(d); N.B. CPA, supra note 5 at s. 21(6)(e); Nfld. CAA, supra note 5 at s. 19(6)(e); N.S. CPA, supra note 5 at s. 22(6)(d); Sask. CAA, supra note 5 at s. 22(1)(e); and FCR,

6 7

8

9

10

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(f) (g)

a description of any counterclaims being asserted and relief sought; 11 a statement that the judgment on the common issues for the class, whether favourable or not, will bind all class members who do not opt out of the proceeding;12 a description of class members' right to participate in the proceeding or appear through an attorney if they desire;13 and an address to which class members may direct inquiries about the proceeding.14

(h) (i) 6.

Timing. Notice of certification of a class proceeding should ordinarily be given to class members as soon as practicable, following certification.15

Protocols Applicable to Settlement of a Class Proceeding 7. Content. Notice given in respect of settlement of a class proceeding which, if approved, is intended to bind class members in more than one jurisdiction should generally: (a) summarize the claims, relief sought and defences,16 and any relevant procedural history (e.g. motions for summary judgment, motions for certification, etc.);

supra note 5 at r. 334.32(5)(d). See also T.L. v. Alberta (Child, Youth and Family Enhancement Act, Director), 2009 ABQB 96.

11

Ontario CPA, supra note 5 at s. 17(6)(e); Alta. CPA, supra note 5 at s. 20(6)(d); B.C. CPA, supra note 5 at s. 19(6)(f); Manitoba CPA, supra note 5 at s. 19(6)(c); N.B. CPA, supra note 5 at s. 21(6)(d); Nfld. CAA, supra note 5 at s. 19(6)(d); N.S. CPA, supra note 5 at s. 22(6)(e); Sask. CAA, supra note 5 at s. 22(1)(d); and FCR, supra note 5 at r. 334.32(5)(e) . FRCP, supra note 1 at r. 23(c)(2)(B)(vii); Ontario CPA, supra note 5 at s. 17(6)(f); Alta. CPA, supra note 5 at ss. 20(6)(g) and (h); B.C. CPA, supra note 5 at ss. 19(6)(g) and (h); Manitoba CPA, supra note 5 at ss. 19(6)(f) and (g); N.B. CPA, supra note 5 at ss. 21(6)(g) and (h); Nfld. CAA, supra note 5 at ss. 19(6)(g) and (h); N.S. CPA, supra note 5 at ss. 22(6)(f) and (g); Sask. CAA, supra note 5 at ss. 22(1)(g) and (h); FCR, supra note 5 at r. 334.32(5)(f). FRCP, supra note 1 at r. 23(c)(2)(B)(iv); Ontario CPA, supra note 5 at s. 17(6)(g); Alta. CPA, supra note 5 at s. 20(6)(i); B.C. CPA, supra note 5 at s. 19(6)(i); Manitoba CPA, supra note 5 at s. 19(6)(h); N.B. CPA, supra note 5 at s. 21(6)(i); Nfld. CAA, supra note 5 at s. 19(6)(i); N.S. CPA, supra note 5 at s.22(6)(g); Sask. CAA, supra note 5 at s. 21(1)(i); Québec CCP, supra note 1 at art. 1006(c); and FCR, supra note 5 at r. 334.32(5)(g) . Ontario CPA, supra note 5 at s. 17(6)(h); Alta. CPA, supra note 5 at s. 20(6)(j); B.C. CPA, supra note 5 at s. 19(6)(j); Manitoba CPA, supra note 5 at s. 19(6)(i); N.B. CPA, supra note 5 at s. 21(6)(j); Nfld. CAA, supra note 5 at s. 19(6)(j); N.S. CPA, supra note 5 at s. 22(6)(h); Sask. CAA, supra note 5 at s. 22(1)(j); and FCR, supra note 5. at r. 334.32(5)(h). FRCP, supra note 1 at r. 23(c)(2)(B); Hoy v. Medtronic (2002), 97 B.C.L.R. (3d) 109 (S.C.); MCL 4th, supra note 3, §21.311 at 288 ("notice to class members should be given promptly after the certification order is issued. When the parties are nearing settlement, however, a reasonable delay in notice might increase incentives to settle and avoid the need for separate class notices of certification and settlement"). MCL 4th, ibid., §21.312 at 294.

12

13

14

15

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(b) (c) (d)

define the class and any subclasses, including any settlement class, and include estimates of the size of the class and any subclasses;17 describe any Related Class Actions pending, including any settlements, of which counsel18 or their client(s) are aware;19 describe the essential terms of the proposed settlement, including the nature and amount of relief, the procedures for allocating and distributing settlement funds,20 including the method for filing a proof of claim; provide information about where class members can obtain a copy of or examine the settlement agreement and other relevant materials;21 if practical, provide information that will enable class members to calculate or at least estimate the range of their of individual recoveries;22 describe clearly the options open to the class members and the implications of each option (including, if applicable, opting out, participating, objecting, submitting a claim or doing nothing), along with the deadlines for taking any action;23 explain the nature of and basis for any valuation of nonmonetary benefits, if the settlement includes them;24 disclose any compensatory or other benefits payable to or requested by the class representatives;25 provide information regarding the maximum amounts sought by class counsel for fees, including disbursements, reimbursement of expenses and applicable taxes and the bases for which those amounts are claimed;26 state the time and place of the hearing to consider approval of the settlement;27 describe the method for objecting to (or, if permitted, for opting out of) the settlement, including that class members have the right to object to the

(e) (f) (g)

(h) (i) (j)

(k) (l)

17 18 19 20 21 22 23 24 25 26 27

Ibid., §21.312 at 295. Supra note 6. Supra note 7. MCL 4th, supra note 3, §21.312 at 295; Québec CCP, supra note 1 at art. 1025(b) and (c). MCL 4th, ibid., §21.312 at 295. Ibid., §21.312 at 295; Québec CCP, supra note 1 at art. 1025(c). MCL 4th, ibid., §21.312 at 295. Ibid., §21.312 at 295. Ibid., §21.312 at 295. Ibid., §21.312 at 295. Ibid., §21.312 at 295; Québec CCP, supra note 1 at art. 1025(a).

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settlement, and/or application for fees and/or the distribution of any remaining balance of funds;28 (m) (n) state that the settlement will bind all class members who have not opted out (if it is an opt-out class action); and29 prominently display the address and phone number of class counsel and the appointed Claims Administrator and explain how to make inquiries of either.30

Where "short-form" notice is provided to the class in the first instance (e.g., for cost reasons), such notice should include information explaining how individual class members can obtain the long-form notice or other information about the settlement, whether via website, telephone call-in center or other means approved by the Court. 8. Single Notice to Class Members. Where class proceedings have been commenced in more than one jurisdiction and a global settlement of all proceedings has been achieved, the parties to the various proceedings and the respective courts with jurisdiction should, at minimum, endeavour to co-ordinate the approval of the contents of a single notice of the proposed settlement to class members, wherever resident. If notice by more than one form is to be provided (e.g., mail, internet or other publication) the parties and courts should endeavour to coordinate the approval of a single form of each.

28 29 30

MCL 4th, ibid., §21.312 at 295; Québec CCP, ibid. at art. 1025(d). MCL 4th, ibid., §21.312 at 294. Ibid., §21.312 at 295.

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PROTOCOL ON COURT­TO­COURT COMMUNICATIONS IN CANADA ­ U.S. CROSS-BORDER CLASS ACTIONS1 1. Where a court intends to apply this Protocol (with or without modifications), counsel in that case shall be given notice and an opportunity to be heard on the sections of this Protocol to be employed. Following such a hearing, the adoption of part or all of this Protocol should, wherever possible, be set forth in orders or minutes or other notice to counsel in the case before it is applied. The Protocol, as and to the extent adopted by the court, shall thereafter be maintained on the docket of the court for the case. (Guideline 12) 2. All counsel should advise the court of any other class actions involving or arising out of (in whole or in part) the same claims or events as in the case before it (a "Related Class Action") of which they or their client(s) are aware3. 3. If a court has been apprised of a Related Class Action and this Protocol has been adopted, wherever there is commonality among substantive or procedural issues4 in the proceedings, the court should communicate with the other court(s) in the manner prescribed by this Protocol with the goal of coordinating proceedings before it with proceedings in other jurisdiction(s). (Guidelines 2 and 16; Article 255) 4. Arrangements contemplated under this Protocol do not constitute: a. (i) a relinquishment, compromise, waiver, abridgement or extension by the court of any in personam or subject matter jurisdiction, powers, responsibilities or authority; or (ii) a determination of any procedural or substantive matter in controversy before the court or before any other court(s); or

1

2

This Protocol has been drafted by judges, practitioners and academics from Canada and the United States. Thus, it was written in consideration of issues and best practices in cross-border cases involving U.S. federal courts and Canadian courts. Courts and litigants in cross-border cases involving other jurisdictions are nonetheless encouraged to adopt (or adapt) this protocol to assist in their particular circumstances, including the "mass action" context. "Guideline" references are to the ALI Guidelines Applicable to Court-to-Court Communications in CrossBorder Cases (http://www.ali.org/doc/Guidelines.pdf), which informed certain sections of this Protocol as indicated. Protocol sections do not adopt all of the Guidelines or quote individual Guidelines verbatim. "Counsel" includes parties who are self-represented. "Substantive or procedural issues" include conduct of discovery. "Article" references are to the UNCITRAL Model Law on Cross-Border Insolvency (http://www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model.html), which informed certain sections of this Protocol as indicated. Protocol sections do not adopt all of the Articles or quote individual Articles verbatim.

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b. a relinquishment, compromise, waiver or abridgement by any of the parties of any of their jurisdictional, substantive or procedural rights, claims or defenses, or a diminution of the effect of, or their rights with respect to, any of the orders made by the court or the other court(s). (Guideline 17) 5. Prior to a communication with another court, the court should be satisfied that the proposed communication is consistent with the applicable rules of procedure or other governing law in its jurisdiction. (Guideline 1) 6. Each court should designate a Liaison Counsel for plaintiffs and a Liaison Counsel for defendants in the proceedings before it to whom, in the first instance, materials from the other court(s) should be provided by e-mail, facsimile or other specified means and who should be responsible for providing materials to the other court(s). (Guideline 12; Article 14) 7. Courts may communicate without parties present, provided: a. such communication pertains solely to procedural, coordination or other non-substantive matters; b. counsel for all affected parties are given advance notice of the communication; and,6 c. following the communication, counsel are given a summary of the communication.7 (Guidelines 8 and 9) 8. Communications from a court to another court or court(s) may take place by or through the court: a. sending or transmitting copies of formal orders, judgments, opinions, reasons for decision or endorsements, other than documents under seal, directly to the other court(s); and/or, b. participating in two-way communications with the other court(s) by correspondence, telephone or video conference call or other electronic means. (Guideline 6)

6

This Protocol is an attempt to suggest best practices and is not intended to limit a court's authority. As such, while "advance notice" is intended to give counsel an opportunity to be heard (or object), this does not affect a court's ability to act in whatever way it sees fit pursuant to the law in its jurisdiction, including after hearing such an objection. A "summary" is intended merely to be a general overview of the substance of the communication and therefore to be informal and amount to much less than a transcript.

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9. A court may conduct a joint hearing with another court or court(s). The following should apply to any joint hearing unless the parties agree otherwise: a. each court and counsel for all parties should be able to hear the proceedings simultaneously in the other court(s); b. courts and counsel should be alert to privilege and immunity-related issues, including where the law8 may differ from one jurisdiction to another, and arrangements should be made on a case-by-case basis to address these issues; and, c. submissions or applications by the representative of any party should be made only to the court in which the representative making the submissions is appearing unless the representative is specifically given permission by the other court to make submissions to it. (Guideline 9)

8

The "law" includes the existence, conditions for and/or waiver of a privilege or immunity.

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