The Nova Scotia Court of Appeal's recent decision in BCE Inc. v. Gillis permanently and
unconditionally stayed a class proceeding that had laid dormant for
over a decade as the plaintiffs pursued a class proceeding in
Saskatchewan. Once the plaintiffs were unable to obtain all sought
relief in Saskatchewan, renewed interest emerged in actions in Nova
Scotia (and elsewhere). The Court of Appeal held that the Nova
Scotia proceeding was an abuse of process.
The Court was careful to note that it is not per se
inappropriate to commence class proceedings in multiple
jurisdictions. Indeed, multiple class proceedings may be expected
at times. But when a claim is commenced for illegitimate reasons or
is neglected for a lengthy period of time, an abuse of process may
In 2004, the same plaintiffs, represented by the same counsel,
commenced prospective class proceedings in nine jurisdictions
across Canada. In Nova Scotia, no steps were taken to advance the
litigation until amendments to the pleadings in April 2014. Rather,
the claim was being pursued in Saskatchewan. Indeed, in 2006, class
counsel stated that "[i]f Certification proceeds in
Saskatchewan it is unlikely that we will ever pursue matters in
Not all common issues were certified in Saskatchewan. Then, a
motion to convert the class proceeding from an "opt-in"
proceeding (whereby prospective class members would need to take
positive steps to be part of the class) to an "opt-out"
proceeding (where individuals in the class definition would
automatically be part of the class unless they took positive steps
to opt out) was denied. The plaintiffs then took steps to advance
the litigation elsewhere. The defendants moved to stay the Nova
Scotia proceeding (among others) as an abuse of process.
The plaintiffs submitted that multiple proceedings in different
jurisdictions are common in the class action context. The Nova
Scotia Court of Appeal accepted this, but noted that in the
instances cited by the plaintiffs, while "the defendants and
the subject-matter were the same[,] the plaintiffs were
The Court did accept that it may be permissible at times to
commence actions in more than one jurisdiction. However, such
circumstances need to be analyzed to determine whether a particular
action is an abuse of process.
While emphasizing that "abuse of process is a contextual
issue that must be assessed in the context of the specific
case", the Court was satisfied that an abuse of process was
present on the facts of this case. Relevant factors in this respect
lack of intention to prosecute the
Nova Scotia action at the outset – a claim brought without an
intent to prosecute serves no proper purpose;
the timelines contemplated for the
prosecution of a class proceeding "do not contemplate that
proceedings will languish for ten years after being
while a multiplicity of proceedings
may be necessary and acceptable in the Canadian federation, this
does not permit parties to leave actions that have been commenced
in some provinces in limbo without considering the wishes of the
the "opt-in" nature of
Saskatchewan's proceeding did not necessarily put Nova Scotia
residents at a disadvantage;
"residents of any particular
province do not have an absolute right to bring a proceeding in
their own province" (were that so, a forum non
conveniens motion could never succeed);
the actions of class counsel
suggested a stay was appropriate;
it is inappropriate to file an action
for the sole purpose of tolling a limitation period if there is no
intention to prosecute the case (this is distinct from commencing
but not prosecuting a case while there is an ongoing investigation
or settlement discussions); and
the reason for the renewed interest
in Nova Scotia was to obtain relief that had been denied by the
Courts of Saskatchewan – this was "an extraordinary
abuse of process".
Again, Gillis does not stand for the proposition that
commencing class proceedings in multiple Canadian jurisdictions
will necessarily be an abuse of process. However, plaintiffs cannot
neglect certain proceedings for years and seek to pursue them only
once they have failed to obtain relief elsewhere. In conclusion,
the Nova Scotia Court of Appeal held:
This case was an abuse of process from the outset when the claim
was filed with no intention to prosecute it here. The abuse was
compounded by the filing of nine virtually identical claims. The
respondents made it clear many years ago that Saskatchewan was the
forum of choice. That was a choice made with the assistance of
legal counsel. The respondents must live with that decision. It is
time the respondents be forced to pick cherries from a single tree;
the one groomed for so many years, while the one in Nova Scotia was
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