Canada: Abuse Of Process: Carbon Copy Class Actions Stayed By Courts Coast To Coast

Over the past year the Nova Scotia, Alberta, and Manitoba Courts of Appeal have each found the same action within their respective jurisdictions, brought by the same law firm on behalf of the same plaintiff class is an abuse of process.1 Unlike in ordinary litigation, where it is prima facie vexatious and oppressive for a plaintiff to sue concurrently in two courts on the same matter, overlapping and parallel class actions commenced in different jurisdictions are not, necessarily, abusive or vexatious. 2 A real issue arises however, when class counsel bring the same action in multiple jurisdictions as part of an overall litigation strategy to toll limitation periods, retain carriage of the matter, or achieve procedural advantages based on jurisdiction. In this case, class counsel filed across the country for all of the above reasons and as a "form of insurance for the possibility of an unsuccessful result" in the province in which the action was pursued. 3 In these circumstances, three appellate courts held that the case was an abuse of process and should be unconditionally stayed.

Leave to appeal to the Supreme Court of Canada has been sought from the Nova Scotia Court of Appeal, although the deadline for the respondents' materials was based on the timing of the Alberta Court of Appeal and Manitoba Court of Appeal decisions. The Supreme Court of Canada is faced with a unique situation: not only is same issue being considered by courts across Canada, but, in fact, the exact same case. It remains to be seen whether bringing carbon copy class actions across Canada as part of a litigation strategy and without the intention to pursue the action (except in one province), will likewise be condemned by the Supreme Court of Canada.

The SAF Actions

In 2004, national class actions were filed by the same class counsel in every province, except PEI, alleging that wireless service providers improperly charged and collected "system access fees" ("SAF") from customers. Class counsel then only pursued certification in Saskatchewan 4 while it "parked" the actions in the other provinces. SAF class actions in British Columbia, Alberta, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland were left at the pleadings stage for the better part of a decade.

Within the last couple of years, the defendants have brought applications to have the SAF actions dismissed or stayed as an abuse of process across the country. Various courts have commented that the SAF actions were "essentially carbon copies" 5, "virtually identical" 6 and "similar in the extreme". 7 Courts in British Columbia, 8 Manitoba, 9 Nova Scotia, 10 Saskatchewan, 11 and Alberta, including appeal courts, have now grappled with the propriety of this litigation strategy.

SAF Litigation in Saskatchewan

In order to understand the most recent decisions, it is necessary to consider the SAF litigation in Saskatchewan and particularly the Frey/Chatfield action. It is this background which the Alberta Court of Appeal held "clearly exemplifies why the Turner action amounts to an abuse of process". 12

The certification application for Frey/Chatfield was initially heard and denied in 2006. 13 However, the Court granted leave to reapply for certification. The Court also held that, of the seven causes of actions advanced, only one was supported by the facts and properly grounded in the law: unjust enrichment. 14

A national class was subsequently certified for the unjust enrichment claim, which permitted non-residents to opt-in to the class. 15 What steps non-residents of a province must take in order to be included in a class action takes two forms in Canada: "opt-in" and "opt-out". Opt-out regimes presumptively include class members who are non-residents, unless they take positive steps to be excluded. Opt-in regimes provide the opposite: non-residents must take positive steps to be included.

This procedural difference between opt-in and opt-out regimes became a focal point for the Frey/Chatfield action because in 2008, the Saskatchewan Class Actions Act was amended from opt-in to opt-out. All class actions legislation has among its goals, access to justice. Where class actions legislation provides that non-residents are presumptively included, there is an argument that better access to justice may be provided to the class. 16

In the Frey/Chatfield action, class counsel then brought an application to convert the nationally certified opt-in class action to an opt-out action. The Saskatchewan Court of Queen's Bench held that the amendments to the Class Actions Act were not retroactive and dismissed the application. An appeal was brought out of time and the application to extend the time was denied by the Saskatchewan Court of Appeal. 17

In 2009, class counsel filed a second SAF class action in Saskatchewan, the Collins action. The Collins action alleged the same facts, causes of action, claim in damages and disgorgement, named the same defendants, and provided the same class definition and class period as the Frey/Chatfield action. The change, slight as it was, was that non-residents would have to opt-out of the class, rather than opt-in. The Court conditionally stayed the Collins action as an abuse of process. It was "nothing more than an attempt to redo what had already been done in the Frey action, presumably in the hope of somewhat different results." 18 A subsequent motion to lift the stay was refused. 19

Dormant SAF Actions

Meanwhile, the SAF actions in other provinces lay dormant except where the defendants brought applications to dismiss or stay the underlying SAF actions:

  • In British Columbia, the Drover action was stayed as an abuse of process in 2013. The rejected causes of action in the Frey/Chatfield certification were identical to the causes of action raised in the Drover action. An appeal was launched, not pursued, and ultimately dismissed. 20
  • In Alberta, the Pappas action was dismissed in 2013 for long delay.21 Class counsel then filed a second SAF action, the Turner action. A permanent stay was initially denied 22 but the decision was reversed, as discussed below.
  • In Manitoba, the Hafichuk-Walkin action was unconditionally stayed by the Court of Queen's Bench in 2014. 23 This decision was appealed, and the stay was upheld, as discussed below.
  • In Nova Scotia, the Supreme Court initially declined to grant a stay. The Court of Appeal reversed that decision, held the Gillis action was an abuse of process and granted an unconditional stay. 24 Leave has been sought to appeal this decision to the Supreme Court of Canada.

It is against this backdrop, including the exhaustion of appeals to the Saskatchewan Court of Appeal and Supreme Court of Canada in relation to the Frey/Chatfield action, that the Courts of Appeal in Alberta and Manitoba considered whether the SAF actions in their respective provinces were an abuse of the courts process.

Alberta Court of Appeal Decision in Turner

The Alberta Court of Appeal held that when the overall circumstances, including the previous Pappas Action in Alberta, and the "decisions of Courts in Saskatchewan, British Columbia, Nova Scotia and Manitoba are given the full faith and credit appropriate to our federal system" the Turner Action was an abuse. 25 In particular, it was an attempt by class counsel to subvert or make an end-run on Saskatchewan decisions in two ways: first, to obtain a national "opt-out" class and second, as a collateral attack on the Saskatchewan Courts' certification of a sole cause of action, unjust enrichment. 26

The Alberta Court of Appeal expressly agreed with the conclusion of Scanlan JA of the Nova Scotia Court of Appeal that class counsel was attempting to obtain the very relief refused by the Saskatchewan courts: 27

This is an obvious case of [class counsel] repeatedly using lawsuits in different jurisdictions (as, in effect, the law firm promised to do) to get around the rulings in the Saskatchewan Courts. This is an abuse not just of the courts of Alberta but is also a trammeling of the reputation of class proceedings legislation, which serves important social goals. It also invites juridical dissonance in Canada.

Manitoba Court of Appeal Decision in Hafichuk-Walkin

The Manitoba Court of Appeal heard the appeal in Hafichuk-Walkin on March 9, 2015 and released its decision a year later. The Manitoba Court of Appeal acknowledged that the completion of proceedings in Nova Scotia and Alberta delayed the decision, and that decisions in Gillis and Turner were of assistance.28 The Manitoba Court of Appeal reached the same conclusion as the other courts: the SAF action was an abuse of process in the circumstances.

The Manitoba Court of Appeal also clarified, with respect to the distinction between parallel and duplicative class actions, that: 29

In our federation, parallel multi-jurisdictional class actions are permissible. However, 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 echoed the comments of the Nova Scotia and Alberta Courts of Appeal, that it is the context of each multi-jurisdictional class action which determines whether or not the degree of overlap between claims gives rise to an abuse of process. 30 Context also includes a consideration of the diligence in prosecuting the action. In this case, the action in Manitoba was parked for a decade while the Frey/Chatfield action was advanced in Saskatchewan. 31

With respect to the opt-in/opt-out distinction, the Court emphasized that the critical consideration is not the alleged potential unfairness to non-resident members of the class in the Frey/Chatfield action, but rather whether there are reasonable safeguards to guarantee the principle of access to justice based on the common law and the provisions of Saskatchewan's Class Actions Act. Hafichuk-Walkin was an abuse of process given the capacity and willingness of the Saskatchewan courts to protect the interests of Manitoba residents by ensuring adequate and timely notice of the Chatfield/Frey action.32

In an essentially carbon-copy finding to the Alberta and Nova Scotia Court of Appeal, the Manitoba Court of Appeal concluded:33

[Class counsel] is maintaining the SAF class actions filed outside of Saskatchewan, despite the fact that Frey/Chatfield action is certified and going to trial, as nothing more than a form of insurance for the possibility of an unsuccessful result in that jurisdiction on the claim of unjust enrichment. That is inappropriate and amounts to an abuse of process.

Will the Supreme Court of Canada Hear the Appeal?

Three appellate courts have concluded that duplicative, strategically managed class actions filed throughout Canada are an abuse of process. In 2009, the Supreme Court of Canada called on provincial legislatures to "pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional disputes should be established ... in the Canadian legal space".34 Some of those problems have manifested in the SAF litigation including upending the goal of judicial economy and replacing it with judicial inefficiency.

As mentioned above, the leave to appeal application to the Supreme Court of Canada is pending. With the Manitoba Court of Appeal's decision in Hafichuk-Walkin, the 90-day clock for the respondents to file their materials has now started. We will update you on that leave decision in our regular SCC Monitor blog posts.


1 Hafichuk-Walkin v BCE Inc, 2016 MBCA 32 ("Hafichuk-Walkin"); Turner v Bell Mobility, 2016 ABCA 21 ("Turner"); BCE Inc v Gillis, 2015 NSCA 32 ("Gillis"). This action was briefly addressed in our earlier blog post entitled "10 Years, 9 Provinces, 1 Claim and 5 Different Results". Note that while the lower courts were previously divided on this case, the appeal courts have each reached the same decision.

2 See e.g., Turner, ibid at para 6.

3 Hafichuk-Walkin, supra note 1 at para 56.

4 For background on the Saskatchewan action, see Chatfield v Bell Mobility Inc, 2014 SKQB 82 at paras 3-15.

5 Hafichuk-Walkin v BCE Inc, 2014 MBQB 175 at para 4 ("Hafichuk-Walkin QB").

6 Gillis, supra note 1 at para 4.

7 Collins v BCE Inc, 2010 SKQB 74 at para 5.

8 Drover v BCE Inc, 2013 BCSC 1341; appeal statutorily dismissed 2015 BCCA 132 (one JA) ("Drover").

9 Hafichuk-Walkin QB, supra note 5 aff'd Hafichuk-Walkin, supra note 1.

10 Gillis, supra note 1.

11 Collins v BCE Inc, 2010 SKQB 74 at paras 1, 3-6, 11-17.

12 Turner, supra note 1 at para 9.

13 Frey v BCE Inc, 2006 SKQB 328.

14 Ibid at paras 1, 46, 81-98.

15 Frey v BCE Inc, 2007 SKQB 328.

16 See e.g., Hafichuk-Walkin, supra note 1 at para 12.

17 The Class Actions Amendment Act, 2007, SS, 2001, c 21.01; Frey v Bell Mobility Inc, 2009 SKQB 165 at paras 15-24; Frey v Bell Mobility Inc, 2013 SKCA 26 ("Frey").

18 Collins, supra note 11 at paras 1, 3-6, 11-17.

19 Ibid at paras 7-10.

20 Drover, supra note 8.

21 Pappas v BCE Inc, 2014 ABQB 122 ("Pappas").

22 Turner v Bell Mobility, 2015 ABQB 169 at paras 7-11.

23 Hafichuk-Walkin QB, supra note 5.

24 Gillis v BCE Inc, 2014 NSSC 279 rev'd 2015 NSCA 32.

25 Turner, supra note 1 at para 36 (note that the Manitoba Court of Appeal's decision in Hafichuk-Walkin was on reserve when the Alberta Court of Appeal released its decision in Turner).

26 Frey, supra note 17; Turner, supra note 1 at paras 37-39.

27 Ibid, Turner, at para 42.

28 Hafichuk-Walkin, supra note 1 at paras 13-18.

29 Ibid, at para 40 [underline in original; citations omitted].

30 Ibid, at para 41ff.

31 Ibid, at paras 44-47.

32 Ibid, at para 55.

33 Ibid at para 56 [citations omitted]

34 Canada Post Corp v Lépine, 2009 SCC 16 at para 57.

To view original article, please click here

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.