On March 14, 2016, the Manitoba Court of Appeal issued its
long-awaited decision in Hafichuk-Walkin v BCE, 2016 MBCA 32,
joining the increasing number of Canadian appellate courts that
have stayed duplicative class actions using the "abuse of
In 2004, the Merchant Law Group (MLG) instituted nine
essentially identical proceedings in every province in Canada
except Prince Edward Island, seeking to certify a national class
action against various wireless telecommunications companies with
regard to "system access fees" charged in connection with
cellular phone service. MLG chose to pursue the proceedings in
Saskatchewan, at the time a "no costs",
opt-in1 jurisdiction, while leaving the others dormant.
MLG was only partly successful in certifying a class proceeding
before the courts in Saskatchewan, with the court certifying a
national class action only with regard to one aspect of its claim,
but not others. MLG then made numerous unsuccessful attempts to
convert the Saskatchewan proceeding from an opt-in to an opt-out
proceeding and to reintroduce the various causes of action that had
been denied class certification – including by introducing a
second, duplicative new class action in Saskatchewan. However, MLG
took no action to advance the class action proceedings in other
provinces for 10 years.
Eventually, the various defendants (including those represented
by Davies) started applying to stay MLG's duplicative
proceedings on the grounds that they served no purpose other than
to (potentially) re-litigate matters decided by the court in
Saskatchewan and thus constituted an abuse of process. One by one,
courts across the country agreed, starting in Saskatchewan
itself2 and proceeding to British Columbia,3
Nova Scotia,4 Alberta5 and now Manitoba.
In Hafichuk-Walkin, the Manitoba Court of Appeal
accepted the defendants' distinction between
"parallel" and "overlapping" class actions, and
agreed that although the former may be permissible in a federal
system, "multi-jurisdictional class actions are abusive when
they are duplicative and no legitimate purpose would be
served by allowing more than one class action to proceed on behalf
of overlapping class members from one or more provinces"
The Court concluded that MLG's Manitoba proceedings
constituted an abuse of process, both due to the "extreme
delay" in prosecution and because they were introduced not
with a bona fide intent to pursue, but rather "as nothing more
than a form of insurance for the possibility of an unsuccessful
result" (paras. 44, 56). The Court concluded that
"'carbon copy' class actions involving the same
plaintiffs, defendants, lawyers and allegations being allowed to
proceed in two different jurisdictions once a final certification
of a class action has occurred in one jurisdiction ... offends the
principle of comity and exposes the parties and courts to incurring
the evils that a multiplicity of proceedings can give rise to"
With respect to the distinction between opt-in and opt-out
proceedings, the Court held that the fact that Manitoba residents
had to actively opt in to take part in the Saskatchewan case
– in contrast to a Manitoba-certified class action in which
participation would be automatic – did not compromise the
ability of the Saskatchewan class action to provide access to
justice for class members. Echoing its counterparts in other
provinces, the Court of Appeal expressed its confidence that the
Saskatchewan court "will have the capacity and willingness to
protect the interests of Manitoba residents by ensuring that they
will receive adequate and timely notice to opt into" the
proceedings (para. 55).
MLG has filed applications for leave to appeal to the Supreme
Court of Canada from the decisions of the Alberta and Nova Scotia
courts, and one from Hafichuk-Walkin is expected to
follow. Davies continues to act in this matter.
1 In an opt-in proceeding, potential class members from
outside the province must affirmatively opt in to become a part of
the class. In an opt-out proceeding, by contrast, potential class
members from outside the province are deemed to be members of the
class unless they affirmatively opt out. Plaintiffs' counsel
generally prefer opt-out actions because they make for larger class
2 Collins v BCE Inc, 2010 SKQB 74.
3 Drover v BCE Inc, 2015 BCCA 132.
4 BCE v Gillis, 2015 NSCA 32, leave to appeal to
the SCC pending (Docket #36468).
5 Turner v Bell Mobility Inc, 2016 ABCA 21, leave
to appeal to the SCC pending (Docket #36899).
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guide to the subject matter. Specialist advice should be sought
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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