Canada: Can Representative Plaintiffs from Other Jurisdictions Adduce Evidence in a Certification Application?

Class proceedings often concern issues that involve persons residing in a number of provinces. A representative plaintiff residing in one province may seek to certify a class proceeding on behalf of a class that includes persons that reside outside of the province. Saskatchewan class proceedings legislation defines such a proceeding as a "multi-jurisdictional class action".1 A class member residing in another jurisdiction may also seek to commence a class action in his or her jurisdiction on behalf of the same class with the result that multiple class actions in different jurisdictions relate to the claims of overlapping groups of persons.

In order to avoid this kind of duplicative litigation, The Class Actions Act requires the Court to determine if it would be preferable for the claims or common issues to be resolved in the other class action.2 In making this determination the Court must consider certain objectives of the legislation such as promoting judicial economy,3 and all relevant factors including the stage that each of the actions has reached and the location of the representative plaintiffs and class members in the various actions.4 The Court may refuse to certify the Saskatchewan class action if the Court determines that it should proceed as a multi-jurisdictional class action in another jurisdiction.5

The Class Actions Act also provides that representative plaintiffs in multi-jurisdictional class actions elsewhere in Canada that involve the same or similar subject-matter as the Saskatchewan class action are entitled to notice of the Saskatchewan certification application.6 The representative plaintiff from the other jurisdiction is explicitly permitted to make submissions at the Saskatchewan certification application.7 However, The Class Actions Act does not expressly provide that the plaintiff in the other jurisdiction can file evidence or make applications. The recent decision of the Saskatchewan Court of Queen's Bench in Ammazzini v Anglo American PLC, 2016 SKQB 53 ("Ammazzini") has interpreted The Class Actions Act to also permit the representative plaintiff from the other jurisdiction to adduce evidence and to make an application for a conditional stay of the Saskatchewan class proceeding.

The Ammazzini litigation, which is ongoing, involves allegations that the defendants overcharged for gem grade diamonds by restricting the world supply of diamonds so as to inflate their prices. It was commenced in 2011 and is advanced on behalf of residents of Canada (other than British Columbia residents). Similar litigation was previously commenced in Ontario in 2010, also advanced on behalf of residents of Canada (other than British Columbia residents). Since the Ontario litigation constitutes a multi-jurisdiction class proceeding under the Saskatchewan legislation, the representative plaintiff in the Ontario class action (the "Ontario Plaintiff") was entitled to notice of, and to make submissions at, the Saskatchewan certification application.

The Ontario Plaintiff applied for a stay of the Saskatchewan class proceeding until the determination of a similar multi-jurisdictional class action certification motion in Ontario, and adduced evidence in support of his application. His stay application was heard by the Saskatchewan Court of Queen's Bench concurrently with the certification application for the Saskatchewan class proceeding. The Saskatchewan representative plaintiff objected on the ground that the language of The Class Actions Act only permitted the Ontario Plaintiff to make argument (that is, submissions) in the Saskatchewan certification application, not to adduce evidence or to make his own application. The Court rejected this argument, noting that this interpretation of the statute could deprive the Court of evidence that the statute requires it to consider, such as information identifying the proceedings in the other action to date. This information is needed for the Court to determine the most appropriate venue for the multi-jurisdictional class action. The Ontario Plaintiff was permitted to make an application to stay the Saskatchewan class action and to file evidence in that action.

The Ammazzini decision broadly construes the right of representative plaintiffs in similar proceedings in other jurisdictions to present all relevant information to the Court, including by adding to the evidentiary record. This approach seems sensible given that the Court would not otherwise have the benefit of information regarding matters that the Court is required by statute to consider. The Saskatchewan Court of Appeal has recently granted leave to appeal on this issue, among others, in Ammazzini v Anglo American PLC, 2016 SKCA 73. As a result, it remains to be seen whether representative plaintiffs in multi-jurisdictional class actions from outside of Saskatchewan will continue to have a broad right to adduce evidence in Saskatchewan certification applications.

Footnotes

1 The Class Actions Act, SS 2001, c C-12.01, s 2.

2 Ibid, s 6(2).

3 Ibid, s 6(3)(a).

4 Ibid, s 6(3)(b).

5 Ibid, 6.1(2)(b).

6 Ibid, s 4(2)(c).

7 Ibid, s 5.1.

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