In InvestorCOM Inc. v. L'Anton, 2025 BCCA 40, the BC Court of Appeal upheld the chambers judge's decision not to strike the plaintiff's claim because of a parallel action in Ontario that also sought certification as a national class action.
The Ontario and the BC actions both alleged a data breach in February 2023, involving the appellants' customers' data. The BC action was filed just over two months after the Ontario action, advancing a wider scope of claims and naming an additional defendant.
The appellants had alleged that the BC action amounted to an abuse of process, but the Court held that, given the nature of the tort and class action legislation in BC, and the representative plaintiff's residence in BC, there were legitimate reasons for the plaintiff to pursue relief in BC rather than in Ontario. The Court recognized higher cost risks in Ontario than in BC. In addition, the Court recognized that the approach to data breaches in Canada may vary between provinces, with BC having a statutory breach of privacy tort and Ontario not yet having such a statutory tort. The Court set out that there was no evidence the representative plaintiff had improper motives for bringing such an action, and that such an incentive could not be inferred simply because other plaintiffs are pursuing a claim in Ontario.
The Court further held that the proper time to consider staying a proposed class action in preference of a parallel action in a different Canadian jurisdiction—solely by reason of similarity of claims—is at the certification hearing pursuant to s. 4.1(1)(b) of the Class Proceedings Act (the CPA).
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- Protocols have been introduced nationally to address concerns about duplication of resources, e.g., Supreme Court of British Columbia Practice Direction 55.
- Different costs regimes across the provinces may impact the commencement of a class proceeding. For example, in BC, a plaintiff who brings a certification motion and fails will not be subject to an award of costs, subject to limited exceptions (CPA, s. 37), whereas in Ontario, the general rule is that the loser pays the winner's reasonable costs.
- In its analysis of whether duplicative claims would be considered an abuse of process, the Court noted that different counsel were involved in pursuing these claims.
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