An Analysis of Parallel Multi-Jurisdictional Class Proceedings: Part II

Authors: Jason Mohrbutter, Jared Biden

This post updates our previous blog on parallel multi-jurisdictional class proceedings.

We previously outlined the case of Ammazzini v Anglo American PLC, 2016 SKQB 53 [Ammazzini QB] where Justice Currie (the “Certification Judge”) ordered a conditional stay of a putative national class action in Saskatchewan found to be essentially duplicative of extant proceedings in Ontario. The stay was ordered on the application of the proposed representative plaintiff from the parallel Ontario proceeding (the “Ontario Plaintiff”), as the Certification Judge determined that the Ontario plaintiff had standing to apply for a stay under s. 5.1 of The Class Actions Act, SS 2001, c C-12.01 (the “Act”).

Writing for a unanimous court in Ammazzini v Anglo American PLC, 2016 SKCA 164 [Ammazzini CA] Chief Justice Richards upheld the substance of the decision in Ammazzini QB, with a few notable caveats.

Chief Justice Richards held that the Certification Judge erred in determining that the Ontario Plaintiff had standing to apply for a stay of the Saskatchewan proceeding. To this end, s. 5.1 of the Act only entitles out-of-province representative plaintiffs to make submissions — written or oral— at a Saskatchewan certification hearing. It does not grant standing to make applications. Furthermore, Chief Justice Richards clarified that submissions under s. 5.1 are limited in scope, and must relate to whether it is preferable for claims and issues raised in the Saskatchewan class proceeding to be resolved in a multi-jurisdictional class proceeding outside of Saskatchewan (Ammazzini CA at paras 46-52).

However, Chief Justice Richards held that the Certification Judge was under an independent obligation, under s. 6(2) of the Act, to decide whether it would be preferable for the claims being advanced in the Saskatchewan action to be resolved in a parallel multi-jurisdictional class action, such as the one being advanced by the Ontario Plaintiff. If an out-of-province action is preferable to a Saskatchewan action, the Saskatchewan action should be stayed at the certification hearing (ibid at para 52).

Chief Justice Richards held that the Certification Judge’s analysis correctly followed the framework he was required to apply under s. 6(2) of the Act to determine whether the Ammazzini action should be stayed in favour of the Ontario action. It was clear that the Certification Judge would have made “exactly the same bottom-line order,” regardless of whether the Ontario Plaintiff had applied for a stay or not. Accordingly, the substance of the appeal was dismissed (ibid at para 53).

A number of additional grounds of appeal were also dismissed. In doing so, Chief Justice Richards provided helpful guidance for courts and lawyers conducting a certification hearing in the face of parallel multi-jurisdictional class proceedings.

Chief Justice Richards noted that the court is not required to consider s. 6(2) of the Act only after it has decided that the action should be certified. Such a rigid analytical approach would create “duplicative and unnecessary fact finding and legal analysis,” and would impede access to justice by increasing the cost of legal services (ibid at para 58).

The appellants also contended that the Certification Judge resorted to an improper “first-to-file” test, based on the fact that the Ontario action had been commenced earlier than the Saskatchewan action. Chief Justice Richards dismissed this ground of appeal on the basis that it was clear the Certification Judge had not rendered his decision on this basis. Chief Justice Richards did not definitively hold that a decision based on first-to-file considerations constitutes reversible error. Instead, the question appears to have been left open for another day (ibid at para 63).

Chief Justice Richards went on to dismiss a number of ancillary grounds of appeal, including that an improper “prospect of orderly proceedings” test was applied, that the interests of out-of-province counsel were given improper consideration, that improper deference was granted to the Ontario proceedings, and that there had been a failure to consider the differences between the proposed classes in the Ontario and Saskatchewan actions.

It appears the Court of Appeal has confirmed that the approach used in Ammazzini QB is the appropriate analysis for determining whether to stay a Saskatchewan class action in favour of a parallel multi-jurisdictional proceeding from another Canadian province.

Although such Saskatchewan actions cannot be stayed on application by plaintiffs from other jurisdictions, judges are required to undertake the stay analysis as part of the certification analysis under s. 6(2) of the Act in any event.

For a full discussion of the factors applied by the Certification Judge in the Ammazzini QB, please see our previous blog entry.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.