In Hafichuk-Walkin v. BCE, the Manitoba Court of Appeal upheld the lower court's decision to unconditionally stay a class action commenced in Manitoba by Merchant Law Group in 2004 alleging various telecommunications providers had been improperly charging their wireless phone customers "system access" fees each month. Merchant had issued actions in nine provinces, which at the time included provinces that had both opt-in and opt-out class action legislation. Merchant only moved the Saskatchewan action forward, and it was certified as a national opt-in class action, pursuant to Saskatchewan legislation. In 2008, Saskatchewan changed its legislation to provide for opt-out class actions, but Merchant was unable to convert the certified Saskatchewan action to a national opt-out class action. Subsequent to this loss, the defendants successfully moved to have the Alberta, British Columbia and Nova Scotia class actions stayed as an abuse of process.
Though the result is the same as in the other provinces, in that the Court of Appeal upheld the stay, this decision is significant as it synthesizes the analysis from the decisions in the other provinces to provide a useful guide to the arguments that can be used against parallel class actions brought in different provinces. As a consequence, the case will be of interest to financial institutions which, increasingly, face parallel proceedings brought by different class counsel in different jurisdictions.
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