Authors: Jason Mohrbutter, Jared Biden
This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.
It is common for separate proposed class actions relating to the same subject matter to be commenced in multiple jurisdictions. If the plaintiffs do not agree to work together and focus on a particular jurisdiction, defendants must defend against duplicative allegations involving the same class in multiple jurisdictions. Alberta and Saskatchewan’s class action legislation allows plaintiffs from other jurisdictions to attend certification motions and attempt to persuade the court to stay the proceedings in favour of allowing the similar proposed class action to proceed in the outside jurisdiction. Our previous blog post analyzing the Kohler v Apotex decision from Alberta is an example where the Alberta Court declined to stay an Alberta class action proceeding in favour of a similar proceeding in Ontario. However, a stay of a proposed class action in Saskatchewan was recently ordered in favour of a proposed Ontario class action.
In Ammazzini v Anglo American PLC, 2016 SKQB 53 Justice Currie ordered a conditional stay of a putative Saskatchewan class action that was found to be essentially duplicative of already extant litigation in another province. The Ammazzini action was predicated on an allegation that the defendants had engaged in a systematic overcharging of gem grade diamonds. Similar actions had been commenced in multiple Canadian jurisdictions, including British Columbia and Ontario in 2007 and 2010 respectively.
The class definition in the British Columbia action was restricted to residents of that province. However, the Ontario action contemplated a national class, except for individuals residing in British Columbia. Plaintiffs’ counsel in British Columbia and Ontario were working together to advance their respective claims. The British Columbia action was certified in 2014, although an appeal is pending (Fairhurst v Anglo American PLC, 2014 BCSC 2270). The certification application for Ontario is scheduled for April, 2016.
In contrast, the Ammazzini action was commenced in 2011. The certification application was heard in late 2015, during which the British Columbia and Ontario plaintiffs asked that Ammazzini be conditionally stayed pending the certification results in Ontario.
Justice Currie first determined that the certified B.C. action did not meet the criteria of a multi-jurisdictional action and those plaintiffs therefore had no standing under the legislation. However, the Ontario plaintiffs met the legislated requirements and were allowed to proceed with their stay motion.
Next, Justice Currie outlined the applicable test for determining when one proposed multi-jurisdictional class action should be stayed in favour of another. The prospect of a stay arises where two or more actions involve similar or identical subject-matter. Justice Currie found that the Saskatchewan and Ontario claims were “at least similar”. The allegations of diamond price-fixing were similar; as were the defendants involved and causes of action plead in both actions.
Justice Currie went on to consider whether the other factors and principles outlined in the legislation favoured a stay. He found that the “Saskatchewan plaintiffs have been building on the work of the Ontario and British Columbia plaintiffs.” (at para 27) Despite the fact that “the Saskatchewan plaintiffs have devoted a large amount of energy and resources to bringing the Saskatchewan action to the certification hearing” the finding that the plaintiffs in B.C. and Ontario had done the “heavy lifting” supported a stay of the Saskatchewan action (at paras 28 & 29). Notably, this finding was made in a context where the certification motion in Ontario had not yet occurred (which was an important reason Associate Chief Justice Rooke found a stay should not be granted in the Kohler decision, see para 43).
However, Justice Currie stressed that the stages of the Ontario and Saskatchewan actions remained roughly similar and there was no question that the matter would continue to be diligently prosecuted from Ontario. He also noted that the presence of the duplicative Saskatchewan action brought with it the prospect of greater complication, expense, delay, inefficiency, and the risk of conflicting decisions.
All other factors in the legislation were neutral. These included: the alleged basis of liability, the location and ability of plaintiffs and class members, and the location and evidence of witnesses. Finally, the professional discipline history of the lead counsel for the Saskatchewan plaintiff was irrelevant to the analysis.
Justice Currie dismissed the prospect of a general rule preferring the first case to reach certification (at para 55). However, he noted that if all factors had been equal he would have stayed the Saskatchewan action because the Ontario action had been commenced first, and there was no “apparent need for another” (at para 59). Justice Currie also declined to turn this observation into a strict rule, noting that in some cases there may be good reasons for allowing a second or third claim to continue.
 The relevant legislative provisions in Saskatchewan include s. 6(2) of The Class Actions Act, SS 2001, c C-12.01 (the “CAA“)