Class Actions Litigation Bootcamp

8:45-9:00 Course Framework for Analysis

Canada continues to see an increase in class actions litigation activity and complexity of claims. With the advent of the lowered thresholds for certification, settlement of class claims is no longer a certainty. It is increasingly important for counsel, particularly those new to class actions, to have a foundational understanding of class action process and management to provide effective client advice, develop solid litigation strategy, manage litigation resources and most importantly, provide superior support to senior class counsel from inception of the claim through to trial.

A class action case will be used as a guide through the practical elements of this course. The course culminates with an opportunity to test your new skills and work through a summary judgment motion arising at certification. An overview of the case and assignment, with a focus on the pertinent facts of the mock claim, will be provided this morning by the co-chairs so that you can maximize your learning experience throughout the course and in the Master Class.

• Identifying the key differences between class claims and individual actions
• How do the differences impact litigation strategy, cost and timelines, unique to both defence and plaintiffs’ counsel?
• Identifying and evaluating evidentiary indicators for claim viability:
  • on the facts, and
  • on the law
• What constitutes a common issue?
• Weighing the risk of exposure to adverse cost awards against the monetary and reputational gains of a successful action
• Key defence-side risk management issues:
  • What are the clients’ key concerns?
  • Reputational issues, cost implications, contracts, timing and other significant factors
  • Performing a real risk analysis to weigh early settlement of a potentially small individual claim against galvanizing the full litigation resources of a defendant or insurer
• Ensuring that plaintiffs’ counsel has sufficient funding in place to support the duration of the claim
  

• Selecting the ideal representative plaintiff
  • Assessing adequacy for exposure to adverse costs (where applicable)
  • How to increase your chances of the representative plaintiff retaining your firm as counsel
• Working with third party administrators and notice providers to narrow or expand the identifiable class
• Evaluating the national class option
  • Are national classes constitutional?
  • Considerations in developing a national class
  • Key practical developments from the National Class Actions Taskforce in inter-jurisdictional procedure
• Managing the challenges in multi-jurisdictional class claims
  • Distinguishing process in Québec versus the common law provinces
  • Comparative analysis of differing cost consequences across the country
  • Proven strategies to address the procedural challenges in multi-jurisdictional claim

• Understanding the implications of Pennyfeather v Timminco, requiring delivery of full and complete pleadings prior to certification
• Disclosing a cause of action: Advancing or guarding against motions to strike pleadings as disclosing no reasonable cause of action
• Considerations in identifying potential alternate causes of action
• Does the claim raise common issues?
• Examining the claim from a defence perspective to challenge the pleadings
  • What are the available defences?
• Choosing the most appropriate jurisdiction or forum for the claim
  • Are there any restrictions in choice of jurisdiction from a plaintiffs’ perspective?
  • When and in what circumstances may the defence challenge the venue?
• Breakout Exercise:
  • For plaintiffs’ counsel: Comparing and contrasting key clauses in precedent Statements of Claim
  • For defence counsel: Reviewing a strong statement of defence
    

Additional speakers will be announced

How did the top class counsel get to where they are today? Take advantage of this unique opportunity to gain exposure to and network with leading plaintiff and defence class actions lawyers. Learn what you can do as an associate to advance your career as a class actions litigator.

Class counsel are required to manage priorities more so than in traditional individual claims. In a class action, you must advocate to gain advantage for your client and to put yourself in the best position to meet the challenge of certification, but at the same time, it is the expectation of judges that the parties are cooperative and try to make the process as fluid and streamlined as possible. This session will assist you in balancing these two competing constraints.

• What are the primary differences in treatment of a class claim as opposed to an individual proceeding?
• Drafting a comprehensive litigation plan: Identifying the hallmarks of a strategic plan
• Motions: Insulating against potential delays arising from postponements or denial in permission to proceed with preliminary motions
• Managing the expectations of your case management judge in a class claim
  • Anticipating and planning for frequent case conference calls and meetings, preliminary orders pertaining to the timing of motions, restrictions on the traditional rights of parties pre-certification
  • Discharging your onus of full and frank disclosure at the outset about intended motions and discovery related items
  • How to effectively deal with numerous counsel on multi-jurisdictional claims to balance competing interests and stay on track

Currently in Canada, class counsel proceed to certification on a very thin evidentiary record, which leaves many issues to be addressed post-certification. This process may result in a marked disadvantage to the defendants, and conversely, places the plaintiffs in a better bargaining position leading up to trial. This session will provide clarity and guidance on the principles arising from the voluminous case law concerning certification.

• Implications of recent case law on certification practices on a national scale
• Pre-certification requirements and evidentiary standards:
  • What are the current certification criteria?
  • What evidence goes to the merits, and what goes to the issues?
  • Is there any meaningful distinction?
• Comparative analysis of how certification varies:
  • in Ontario as compared to other jurisdictions in Canada
  • in the U.S. versus Canada
  • What are the advantages and disadvantages to the different approaches?

As evidenced by recent case law, certification is becoming harder for defendants to avoid, and as a result, class claims will have to be defended on the merits. Plaintiffs are expected to now face a more robust pre- and post-certification motions practice, as defendants challenge certification hearings taking place prior to the development of a substantial evidentiary record. This session will give plaintiffs’ counsel a clear understanding of how a good certification motion is constituted, and show defence counsel what to expect.

• Research strategies to focus your time and effort
• Checklist of items to be included in every successful motion
  • What information and documentation is required?
  • Framing common issues
  • How to treat non-essential evidence, and when can it be persuasive?
  • Strategies to ensure that the evidence does not bleed into the merits
  • Keeping within the permissible page limits
• Timing: When can you bring preliminary motions, concurrent motions (along with certification), and when ought matters to be stayed?
• Exercise: Working through a solid precedent motion record for guidance on compiling the best possible documentation, with a focus on the supplementary materials

• Guidance on preparing concise and effective responding materials
• Key considerations to opposing certification in increasingly class action friendly jurisdictions
• Successful strategies for defeating certification:
  • When is a motion to strike the pleadings appropriate?
  • When is it appropriate to bring a summary judgment motion at the certification stage?
  • Building the case in support of discontinuance and decertification
• Balancing considerations in moving for Rule 20 summary judgment
• Anticipating and insulating the claim against an appeal on defeated certification at first instance
• When to take advantage of the limited partial discovery option prior to certification
  

• When is documentary discovery permitted prior to certification as of right?
  • A comparative analysis of the different provincial regimes
• Anticipating motions for productions and other discovery related proceedings
  • A refresher on privilege
• Leveraging advancing technology to track and manage a voluminous post-certification evidentiary record
  • Special considerations for e-discovery in class claims
• Examining the scope of discovery of class members as opposed to the representative plaintiff
  • Understanding regional differences, particularly in jurisdictions where representative plaintiffs are not required to have a claim against each and every defendant
  • What are the implications of St. Jude Medical in permitting discovery of non-representative class members?
  • How to counteract the disadvantage to defendants on restrictions against discovery of other class members
• Exercise: Using Witnesses to your Advantage through Oral Discovery
  • Making the most of expert evidence: What can you expect from your experts, and when?
    

• Using arbitration or mediation in class action proceedings:
  • Setting priorities: Determining what you want to achieve
  • Understanding planning and timing considerations to maximize chances of success
  • Key considerations and concerns in relation to partial settlements
  • Anticipating what a mediator expects to facilitate a smooth proceeding
• Due diligence in obtaining comprehensive valuations and other key documents in support of settlement
  • Ensuring that all parties are at the table
  • Using technology as an aide
  • Considerations in outsourcing to select appropriate service providers, being mindful of cost and expertise