Multi-jurisdictional class action, multi-jurisdictional record?

More and more, class action proceedings filed in the United States are being mirrored in Canada, or class action proceedings filed in one province are often duplicated in one or many other provinces. These claims sometimes invoke the very same allegations and wrongdoings against the same defendant or group of defendants or various local entities.

However, whether in a co-ordinated fashion or a “lead” case bell-wethering others, local rules continue to apply in relation to the production of documents and the establishment of the record for the adjudication of the dispute in each of the forum it is brought.

In Quebec, courts have already found that a party cannot blindly rely or seek the production of documents that have been filed in another jurisdiction even if a class action is brought against the same defendants and seeks the same remedy. In Mouvement d’éducation et de défense des actionnaires (MÉDAC) v. Société Financière Manuvie, a securities class action proceeding simultaneously in Ontario and Quebec and involving the same set of counsel, the Superior Court of Quebec has refused the plaintiff relying on the document production made in Ontario without establishing their relevance, which would short-circuit the provisions of the Code of Civil Procedure and frustrate the economy of Quebec’s rules of procedure. Indeed, the disclosure of documents in Ontario does not necessarily mean they are relevant to the Quebec proceedings.

Highlighting that Ontario’s rules of civil procedure and the principles pertaining to document discovery materially differs from that applicable in Quebec, the court reaffirmed that discovery rules in common-law jurisdictions cannot be imported into Quebec. Of course, the disclosure of documents by a defendant in another jurisdiction in no way binds it to admitting their relevance before Quebec courts.

Recently, in Schwoob v. Bayer Inc., the Superior Court of Justice of Ontario dealt with a similar issue in a certified pharmaceutical class action for which class proceedings had also been brought in the United States and in which the plaintiff sought that the documents produced in the United States be produced in Ontario.

Under the Ontario Rules of Civil Procedure, every document relevant to any matter in issue in an action that is in the possession, control or power of a party to the action shall be disclosed and, unless privilege is claimed, produced for inspection upon request. However, the blanket production of the documents produced in the U.S. proceedings would be inconsistent with the principle of proportionality, which requires balancing the following factors:

• Whether the time required for the person to produce the document would be unreasonable;
• Whether the expense associated with producing the document would be unjustified;
• Whether requiring the person to produce the document would cause the person undue prejudice;
• Whether requiring the person to produce the document would unduly interfere with the orderly progress of the action; and
• Whether the information or the document is readily available to the party requesting it from another source.

The court found that ordering the production of all the documents produced in the U.S. action will result in the production of a significant volume of documents that are irrelevant in the litigation in Ontario, in addition to imposing on counsel to review those documents before production with respect to issues of relevance and privilege.

The above rationales are likely to be applied throughout the country when dealing with mult-ijurisdictional class actions.

Litigants should be mindful of avoiding a blindfolded duplication of the record or documents produced in another jurisdiction for the purpose of another ongoing litigation elsewhere. In each matter and within each jurisdiction, ensuring that the record for the adjudication of the litigation is in accordance with the local legal framework pertaining to the dispute and local rules of procedure will permit to limit the disclosure of documents to the other side, in addition to minimizing an overflow of unnecessary documents and their use by the opposing party.