Navigating Multijurisdictional Class Actions

Written By Keely Cameron and Alicia Yowart

Parallel class actions, filed in different Canadian jurisdictions under different provincial class action statutes, erode the efficiency that class actions are meant to facilitate, and risk duplicative proceedings and conflicting judicial decisions.

To address these challenges and manage scarce judicial resources, courts in recent years have increasingly shifted towards encouraging national coordination and communication to adjudicate overlapping cases.

Courts have also granted pre-certification stays of overlapping or duplicative proceedings to help manage strained judicial resources, among other aims.

The 2021 decisions of Britton v Ford Motor Company of Canada and Ravvin v Canada Bread Company Ltd illustrate how Alberta courts are using these tools to manage parallel class actions.

Interjurisdictional Cooperation

In recent years, and particularly since the COVID-19 pandemic began, class actions judges and counsel have sought out opportunities to improve coordination and communication among courts and parties facing overlapping class actions in multiple Canadian jurisdictions. In some cases, law firms have taken the lead by organizing consortiums to coordinate national litigation. In other cases, courts have coordinated actions directly.

In Winder v Marriott International Inc, the defendants faced overlapping class actions in British Columbia, Alberta, Ontario, Quebec, and Nova Scotia. The defendant moved in each jurisdiction simultaneously to determine how many actions it should have to defend. 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 spanning four different time zones.

The parties ultimately agreed to proceed with one national class action in Ontario and to stayoverlapping proceedings in other jurisdictions. Justice Perell nonetheless released a decision in late 2020 to “memorialize what was a remarkably successful collaboration of five superior courts from across the country that furthers access to justice and the fair and efficient administration of justice across the country.”

In 2021, in Britton v Ford Motor Company of Canada, the Alberta Court of Queen’s Bench picked up on the apparent inclination of some courts to coordinate, as encouraged in Winder v Marriott International Inc, and requested submissions from the parties on facilitating a joint discussion with the Saskatchewan Court of Queen’s Bench, as both courts faced nearly identical proceedings.

Pre-Certification Stays

Pre-certification stays of proceedings are an important mechanism to help courts manage multijurisdictional class actions. Parties can request a stay before a claim has been certified as a class action. 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.

In deciding whether to stay the action, courts may consider many factors, including the parties’ location, time limitations, the progression of other actions, the similarity of the issues, and potential prejudice or hardship resulting from a stay.

In its 2021 decision in Ravvin v Canada Bread Company Ltd, 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 if 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, coordinated approach.

Recently, the Saskatchewan Court of Queen’s Bench in Piett v Global Learning Group Inc 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 v Aviva Insurance declined a stay request, finding there was no injustice or prejudice in the circumstances in permitting overlapping actions to continue.

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. This denial may be a sign that the Supreme Court supports superior courts’ continued cooperation to manage overlapping matters.

The ability to stay overlapping, multijurisdictional class actions is essential to preserving judicial efficiency and protecting scarce judicial resources. In 2022 and beyond, the management of overlapping class actions across provincial lines will be increasingly important as courts navigate the backlog of existing cases and influx of new matters relating to the COVID-19 pandemic.

Other Articles In This Series

• An Update on COVID-19 Class Actions in Canada
• The Expansion and Contraction of Product Liability Causes of Action
• Diverging Approaches to the Certification of Class Actions
• The Need to Prove Compensable Losses in Privacy Class Actions
• Ontario and British Columbia Lead a Sequencing Culture Shift