The British Columbia Court of Appeal ("BCCA") has reaffirmed its cautious approach to staying or striking proposed class actions. In InvestorCOM Inc. v. L'Anton [InvestorCom], the Court dismissed an appeal seeking to halt a proposed BC class action on the basis that a similar class proceeding was already underway in Ontario.1 The decision highlights the courts' reluctance to pre-emptively intervene in parallel class actions and reinforces the principle that concerns about duplication and overlapping claims should be addressed at the certification stage. Defendants seeking an early stay must demonstrate extraordinary circumstances and cannot rely solely on the existence of a parallel proceeding.
Background
Class actions in Canada have long wrestled with the complications that arise out of multiple overlapping class actions in different provinces. Parallel actions have the potential to create inefficiencies, inconsistent rulings, waste of judicial resources, duplication of work by counsel and experts, and the possibility of "forum shopping" by claimants.
The Uniform Law Conference of Canada has addressed these issues by recommending amendments to existing class proceedings legislation. Many of these amendments, which include procedural mechanisms to manage overlapping class actions, have been incorporated into provincial legislation, including British Columbia's Class Proceedings Act ("BCCPA").2
Under section 4.1(1)(b) of the BCCPA, a court may refuse to certify a class proceeding if it determines that a similar class action in another jurisdiction is the preferable forum.3 Prior notice to the plaintiffs in other Canadian multi-jurisdictional class actions involving the same or similar subject matter is required, and the party who receives notice is given the opportunity to make submissions at the certification hearing.4
This provision enables courts to assess duplication concerns at the certification stage, ensuring judicial efficiency without prematurely foreclosing a plaintiff's right to seek recourse.
Chambers decision
The underlying dispute in InvestorCom arose from a data breach affecting past and former customers of Mackenzie Financial Corporation ("Mackenzie"). The respondent, Mr. L'Anton, a former Mackenzie customer and British Columbia resident, received notice that his personal information had been compromised. Mr. L'Anton commenced a proposed national class action in BC against the appellants, Mackenzie and InvestorCom Inc., alleging that hackers accessed and stole information about Mackenzie's customers from the servers of InvestorCom Inc. ("BC Action"). A parallel action against the appellants advancing similar claims and seeking certification as a national class action had also been commenced in Ontario ("Ontario Action"). The appellants sought to have the BC Action stayed as an abuse of process, each arguing in their respective applications that the claim overlapped with the Ontario Action and served no legitimate purpose.
The chambers judge rejected these arguments and dismissed the stay applications. The Court noted that a proposed class action is not abusive simply because of the existence of a similar class action in another jurisdiction. The judge further noted that a parallel class proceeding will not be an abuse of process unless it can be shown that the impugned parallel action is a duplicative action that was filed for no legitimate purpose.
The Court found that the BC Action was not an abuse of process for three key reasons: (1) it included an additional defendant, InvestorCom Inc., who was not initially named in the Ontario Action; (2) it sought to represent a broader class, including individuals in Quebec who were not covered by the Ontario Action; and (3) it articulated statutory privacy claims with greater specificity than the Ontario Action.
The Court also rejected the appellants' suggestion that subsequent amendments to the Ontario pleadings had rendered the BC Action redundant. The judge clarified that an action that was legitimate at the time of filing does not become abusive simply because a parallel action subsequently evolves to resemble it more closely.
In analyzing the abuse of process claim, the judge relied on Fantov v. Canada Bread Company Limited [Fantov], in which the BCCA determined that concerns about multiple class actions should be dealt with at the certification stage rather than through preliminary applications5. He found that the present case lacked the "unusual or extraordinary facts" necessary to justify an early stay.
The stay applications were dismissed, with the judge reiterating that while courts still retain the discretion to stay proceedings at the pre-certification stage, a party wishing to halt a class action proceeding prior to certification must demonstrate extraordinary or unusual circumstances.
Appeal decision
On appeal, the BCCA upheld the chambers judge's decision, reaffirming that a parallel class action does not constitute an abuse of process simply because a similar class action exists in another jurisdiction. The Court noted that it is not uncommon for different plaintiffs in different provinces to commence proposed class actions over the same wrong, and that the mere existence or possibility of duplication does not establish an abuse of process.
The Court emphasized that it is premature to conclude that two similar class actions are duplicative before they have been certified. Certification is the point at which claims transition from individual lawsuits to class-wide proceedings, making it the appropriate stage to determine whether overlapping claims present a real issue of duplication or judicial inefficiency.
The judge further noted that existing mechanisms, such as section 4.1(1)(b) of the BCCPA and other provincial protocols, provide avenues to address duplication concerns at the certification stage by allowing a judge to refuse to certify a class proceeding if the court is of the view that it should proceed in another jurisdiction.
The BCCA reaffirmed the principles set out in Fantov, emphasizing that pre-certification stays should only be grated in "unusual or extraordinary" circumstances. The Court agreed with the chamber judge that no such circumstances existed in this case. The appellants failed to demonstrate that the BC Action was brought for an improper purpose, or that it lacked a legitimate foundation. The Court noted that the chambers judge had addressed the motives of L'Anton and correctly rejected the appellants' assertion that his motives were improper at the time the action was commenced. In support of the chambers judge's conclusion, the BCCA also noted that the BC Action was filed within the same year as the data breach and shortly after the Ontario Action and that Mr. L'Anton was a different plaintiff represented by different counsel than the plaintiffs in the Ontario Action. Lastly, the Court found that given the nature of the tort and the class action legislation in BC, and his residence in BC, there were legitimate reasons for Mr. L'Anton to pursue relief in BC rather than Ontario.
Importantly, the judge noted that the appellants' arguments stood for the proposition that if there are two parallel class actions proceedings at certification, one should be stayed as an abuse of process prior to a certification hearing. "Further, the effect of their position is that it should be the defendants who get to choose which one should be stayed. I do not accept that argument," the judge wrote.
On the issue of whether the amendments to the Ontario Action rendered the BC Action retroactively abusive, the Court agreed with the chambers judge that the fact that the Ontario plaintiffs later amended their pleadings to align with the BC Action did not retroactively render a formerly legitimate parallel action into an abuse of process.
Ultimately, the Court rejected the Appellants' submissions that the chambers judge misunderstood or misapplied the law and dismissed the appeals. The chambers judge correctly applied existing case law, ensuring that concerns about overlapping claims would be addressed at certification rather than through premature preliminary applications.
Whether the court takes up the invitation to deal with the issue head on at certification remains to be seen. For the time being, defendants in Canada will continue to be faced with the possibility that they are fighting the same case concurrently in different Canadian jurisdictions. Whether Canadian courts will or can ever address this problem satisfactorily- without an MDL process – as available in the US- remains a live issue.
Takeaways
- BC courts remain reluctant to stay class actions before certification: This decision underscores the courts' reluctance to halt overlapping class actions at pre-certification stage in the absence of extraordinary or unusual circumstances.
- Parallel class actions are not inherently abusive: the BCCA reaffirmed that the mere existence of a similar action in another province does not automatically justify a stay. Until certification, individual plaintiffs retain their distinct claims.
- National coordination happens at certification, not before: Section 4.1(1)(b) of the BCCPA provides a structured mechanism for managing duplication concerns at certification, ensuring that courts retain the flexibility to determine the preferable forum at the appropriate time.
- Defendants cannot pre-emptively choose their forum: Defendants should not have the power to dictate which of multiple parallel actions should proceed. Such determinations should be made by the courts at certification.
Footnotes
1. InvestorCOM Inc. v. L'Anton, 2025 BCCA 40.
2. Class Proceedings Act, R.S.B.C. 1996, c. 50.
3. Ibid, s. 4.1(1)(b).
4. Ibid, s 3.1.
5. Fantov v. Canada Bread Company Limited, 2019 BCCA 447.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
