Co-ordination and collaboration: Multijurisdictional class actions
Thursday, May 05, 2022 @ 3:15 PM | By Keely Cameron and Alicia Yowart
Avoiding duplicative proceedings
In Ravvin v. Canada Bread Co., 2019 ABQB 686, the Alberta Court of Appeal reiterated that duplicative national class actions should be avoided if they do not serve a legitimate purpose. A legitimate purpose might involve the engagement of differing facts or law, or separate proceedings are needed to further the objectives of class actions: judicial economy, access to justice, and behaviour modification. Without a legitimate purpose, duplicative proceedings impose unnecessary costs and burdens on courts in Canada, and require a national, co-ordinated approach.
In response to the challenges created by duplicative proceedings, courts in recent years are encouraging national co-ordination and communication between themselves and class counsel. Courts have also embraced granting pre-certification stays of overlapping or duplicative proceedings to manage the strained judicial resources, among other aims.
Recent cases: Co-ordination and pre-certification stays
Several relatively recent decisions speak directly to these emerging trends. In some of these cases, law firms have taken the lead by organizing consortiums to co-ordinate national litigation. In other cases, courts have co-ordinated actions directly to determine the appropriate jurisdiction for the class action to proceed in.
One such example is Winder v. Marriott International Inc., 2019 ONSC 5766. Here, the defendants faced overlapping class actions in British Columbia, Alberta, Ontario, Quebec and Nova Scotia. With the parties’ consent, the case management judges in each action adopted the Canadian Bar Association’s Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions and the Provision of Class Action Notice. The parties agreed that the judges could speak with each other and that a multijurisdictional joint hearing would be held, with the participation of five superior courts across the country.
The parties ultimately agreed to proceed with one national class action in Ontario and to stay overlapping proceedings in other jurisdictions. These efforts by both the judiciary and counsel were viewed to be remarkably successful; promoting access to justice and a fair and efficient administration of justice across provinces.
Similarly, in Britton v. Ford Motor Company of Canada, 2021 ABQB 17, both the Alberta Court of Queen’s Bench and the Saskatchewan Court of Queen’s Bench faced nearly identical class actions. Being acutely aware of this issue, the Alberta court requested submissions from the parties on engaging in a discussion with the Saskatchewan court to manage the litigation.
In additional to collaboration, courts have considered the appropriateness of pre-certification stays in managing multijurisdictional class actions. When faced with a multijurisdictional class action, a party can argue that there is already an overlapping class action in another province, and so the new action should be stayed.
Courts may consider various factors when faced with a pre-certification stay application, including the parties’ location, time limitations, the progression of other actions, the similarity of the issues and potential prejudice or hardship to a party.
Whether a pre-certification stay is appropriate will be determined case-by-case. One example is Piett v. Global Learning Group Inc., 2021 SKQB 232 where the Saskatchewan Court of Queen’s Bench dismissed a class action, underscoring that overlapping proceedings can lead to complications, greater expense, delay, inefficiency and the risk of conflicting decisions. In contrast, the Ontario Superior Court of Justice in Workman Optometry Professional Corp. v. Aviva Insurance Co. of Canada, 2021 ONSC 4668, declined a stay request because the court did not find any injustice or prejudice in permitting the overlapping actions to proceed.
The Supreme Court of Canada has yet to weigh in on the issue of overlapping class actions, having denied leave on cases that raise these issues. It will be interesting to see whether the Supreme Court explores these issues in the future, or whether it is content with the superior courts’ ongoing efforts to manage parallel proceedings.
Addressing the issues raised by overlapping and multijurisdictional class actions is essential to protect the objective of class actions and also protect scarce judicial resources. The COVID-19 pandemic has also prompted a plethora of litigation that crosses provincial boundaries. Being mindful of the challenges with multijurisdictional class actions and the tools available to mitigate the impacts will become increasingly important for courts and counsel alike in the years to come.
Keely Cameron is a partner and Alicia Yowart is an associate at Bennett Jones in Calgary. Keely’s practice focuses primarily on assisting clients to navigate Alberta's oil and gas regulatory regime; however she also has an interest in employment and environmental class actions. Alicia has a general litigation practice with a particular focus on health law, commercial disputes and class actions.
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