Canada: Abuse Of Process? 10 Years, 9 Provinces, 1 Claim And 5 Different Results

One of the challenges faced by defendants in class actions is when the same claim is brought multiple times in different provinces. This practice is common for class counsel looking to toll limitation periods or to achieve an advantage by pursing the action in a plaintiff-friendly province.

One interesting case which is making its way through courts across Canada involves allegations that a charge by cellular and wireless telecommunication services providers of "system access fees" was unlawful (the "System Access Fees Claim"). Filed in 2004, the same System Access Fees Claim, brought by the same law firm, on behalf of the same plaintiffs against the same defendants was filed in 9 of the 10 provinces leaving out only Prince Edward Island (which does not have class action legislation).

Over the next decade, class counsel then pursued the action in Saskatchewan (known as the Frey Action),¹ seeking a national opt-in class and proceeded to park, to varying degrees, the claims filed in the other provinces for the better part of a decade. The Nova Scotia Court of Appeal has equated this with "planting legal cherry trees across the country".²

Only in recent years have the defendants been able to achieve finality in some, but not all, of the provinces. Courts in Alberta,³ British Columbia,⁴ Manitoba,⁵ Nova Scotia,⁶ and Saskatchewan⁷ have now addressed whether bringing "carbon copy claims" in their respective provinces constitute an abuse of process and ought to be struck or stayed.

At the superior courts in Nova Scotia⁸ and Alberta, ⁹ judges have held there was no abuse of process to bring multiple similar or the same claims in different jurisdictions. The superior courts of British Columbia,¹⁰ Manitoba,¹¹ and Saskatchewan¹² found it was an abuse of process to do so. Two appeals are pending in Manitoba and Alberta, and the Nova Scotia Court of Appeal has reversed the decision below denying a stay, and instead granted an unconditional stay in relation to the System Access Fees Claim in that province.¹³

We will continue to keep you informed as the law relating to multijurisdictional proceedings evolves. Given the number of appellate courts involved, it may be that the Supreme Court of Canada will be called upon to revisit its comments on national class actions and the problems they present.¹⁴

Footnotes

[1] Frey v BCE Inc, 2008 SKQB 70 aff'd 2011 SKCA 136 leave to appeal to SCC denied [2012] SCCA No 42.

[2] Gillis v BCE Inc, 2015 NSCA 32 ("Gillis NSCA")

[3] Turner v Bell Mobility Inc, 2015 ABQB 169 ("Turner"); see also Pappas v BCE Inc, 2014 ABQB 122.

[4] Drover v BCE Inc, 2013 BCSC 1341 ("Drover"); appeal dismissed 2015 BCCA 132.

[5] Hafichuk-Walkin v BCE Inc, 2014 MBQB 175 ("Hafichuk- Walkin").

[6] Gillis v BCE Inc, 2014 NSSC 279 ("Gillis NSSC"), rev'd 2015 NSCA 32.

[7] Collins v BCE Inc, 2010 SKQB 74 ("Collins")

[8] Gillis, supra note 6 at paras 104-106.

[9] Turner, supra note 3 at paras 8, 81-83, 105, 108

[10] Drover v BCE Inc, 2015 BCCA 132. (This decision was appealed, but the appeal was not pursued and it was recently dismissed).

[11] Hafichuk-Walkin, supra note 5 at paras 4, 29-32.

[12] Collins, supra note 7 at paras 5-6, 11-17

[13] Gillis NSCA, supra note 2 at paras 13-14, 39, 41, 43, 46, 48, 84, 87

[14] See Canada Post Corp v Lépine, 2009 SCC 16 at para 57.

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