On March 14, 2016, the decision Hafichuk-Walkin v. BCE was rendered by
the Manitoba Court of Appeal, dismissing the appeal, thereby
confirming the motion judge's decision to unconditionally stay
the duplicative proceeding on the ground of an abuse of
This case began more than a decade ago in 2004 when Merchant Law
Group ("MLG") instituted the
Frey/Chatfield action in Saskatchewan seeking
certification of a national class action against almost all the
Canadian wireless telecommunications companies with regard to
"system access fees" ("SAF").
The same action was then filed by MLG before eight other
jurisdictions with similar claims and overlapping class
Based on the court record, the Court of Appeal concluded that
MLG never had the intention to pursue the claims filed elsewhere
than Saskatchewan which was the only jurisdiction before which MLG
successfully certified one aspect of its
claims, that is, on the ground of unjust enrichment. In the other
jurisdictions, the proceedings remained dormant for 10 years at the
pleadings stage until the various defendants sought to have them
stayed, and succeeded in having them either stayed or dismissed in
Nova Scotia, Alberta, British Columbia, Saskatchewan and
In Nova Scotia, in Gillis v BCE Inc., the Supreme Court
of Nova Scotia declined to grant the stay sought by defendant. The
Court of Appeal, in BCE Inc. v Gillis, reversed that
decision and granted an unconditional stay.
In Alberta, a first SAF class action
was commenced by MLG and dismissed for delay in 2014 in the
decision Pappas v BCE Inc. A second
SAF class action was then filed in which the Court of Queen's
Bench of Alberta initially declined to grant a permanent stay. This
decision was reversed by the Alberta Court of Appeal in Turner v BCE Inc.
In British Columbia, the class action
was stayed conditionally as an abuse of process in the decision Drover v BCE Inc.
In Saskatchewan, MLG filed a second
SAF class action in 2009, the Collins action, that was essentially
the same action as the Frey/Chatfield action, with the
only difference of being an opt-out action for non-residents rather
than opt-in. The Court conditionally stayed the action on the
ground of an abuse of process in the decision Collins v BCE
The court opined that the plaintiffs demonstrated very little
diligence with regards to these proceedings. In closing, the
Manitoba Court of Appeal described these proceedings as
"carbon copies" and concluded to their abusive
The Manitoba Court of Appeal pointed out that parallel
multi-jurisdictional class actions on behalf of overlapping class
members from one or more jurisdictions are not inherently abusive.
They can be justified by a variety of circumstances, such as the
lack of a national framework for the prosecution of class actions,
issues concerning the recognition by other jurisdictions'
judgments in a national class action, concerns on the tolling of
limitation periods for non-residents of the opt-in jurisdiction.
The court considers it an abuse of process when simultaneous class
actions in various jurisdictions are filed as an overall strategy,
or as the court puts it, "as nothing more than a form of
insurance for the possibility of an unsuccessful result in that
jurisdiction on the claim of unjust enrichment", with the
intention of only advancing it in one jurisdiction.
Leave to appeal to the Supreme Court of Canada
Leave to appeal has been sought from plaintiffs regarding the
decisions from the Alberta and Nova Scotia Courts of Appeal. It
remains to be seen how the Supreme Court of Canada will decide this
particularly unique question.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
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.
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).