Two recent decisions of the Nova Scotia Court of Appeal and the
Court of Queen's Bench of Alberta have come to opposite
conclusions regarding whether it is an abuse of process to file the
same class proceeding in multiple jurisdictions: BCE Inc v Gillis and Turner v Bell Mobility.
Both cases were filed by the same law firm and concerned the
same allegations related to system access fees charged to owners of
cellular phones. Proposed class actions were filed in nine
jurisdictions across Canada, including Nova Scotia, Alberta and
Saskatchewan. A class action was certified in Saskatchewan and, as
a result, the defendants in Nova Scotia and Alberta sought to
strike out or stay the actions in those jurisdictions on the basis
that it was an abuse of process due to the ongoing action in
In Alberta, Justice Rooke denied the application to permanently
stay or strike the action. His reasons turned on his analysis of
access to justice in the class action context. He noted that the
proper administration of justice requires "that all litigants
and class members have the right to full, not limited, access to
the courts in their jurisdiction." The proposed class action
in Alberta would be an "opt-out" class, meaning that
class members would be automatically included in the class with the
option to opt-out and pursue individual litigation if they so
chose. By contrast, in order to participate in the Saskatchewan
action, non-Saskatchewan residents would be required to take the
active step of opting in. These findings caused Justice Rooke to
conclude that opt-in provisions for non-residents are a significant
detriment to the non-resident class members which, in certain
circumstances will justify the multiplicity of proceedings.
Justice Rooke acknowledged that there was, at one point, an
active national debate relating to the ongoing problem of
overlapping and parallel class actions that he hoped his reasons
Indeed they may have. Justice Scanlan, writing for the Nova
Scotia Court of Appeal just a month later, disagreed with Justice
Rooke's analysis finding that it "is not consistent with
the weight of jurisprudence and inevitably ignores the choices and
actions of representative parties and their counsel." Further,
that Justice Rooke's reasoning will "virtually always
result in a multiplicity of actions where there is a perceived
advantage to the residents of the province in which the motion is
Justice Scanlan noted that the residents of any particular
province do not have an absolute right to bring a proceeding in
their own province since, if that were true, no plaintiff would
ever lose a forum non conveniens motion in his own
province. Justice Scanlan concluded that he would not follow
Justice Rooke's reasons because he did not agree that the
opt-in versus opt-out distinction trumps a proper abuse of process
analysis. Needless to say, Justice Scanlan stayed the action in
Nova Scotia. It may be necessary for the Supreme Court to resolve
this debate for class action litigants and lawyers to have any
certainty on the law in this area.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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