Canada: More Uncertainty In Managing Multi-Jurisdictional Class Actions: Leave To Appeal Granted In Ammazzini v Anglo American PLC

In the recent decision of Ammazzini v Anglo American PLC ("Ammazzini"), 2016 SKCA 73, the Saskatchewan Court of Appeal granted leave to appeal an order made in chambers conditionally staying a proposed multi-jurisdictional class action (the Ammazzini Action) against the respondents, Anglo American PLC, De Beers Canada Inc. and others, pending a certification decision in a similar class action commenced in Ontario by Kirk Brant (the Brant Action).

This matter involved four separate class action proceedings, at various stages and involving plaintiffs (or prospective plaintiffs) in jurisdictions across Canada. The actions involved allegations that the defendants overcharged for gem grade diamonds by restricting the world supply of diamonds to inflate the price. Further background on this case can be found at http://www.canadianclassactionsmonitor.com/2016/06/can-representative-plaintiffs-from-other-jurisdictions-adduce-evidence-in-a-certification-application/#more-1450.

The below table sets provides a brief overview of the various matters:

The Fairhurst Action was certified on December 2, 2014. The certification motion in the Brant Action was scheduled to be heard in April of 2016, but was adjourned. The Fairhurst and Brant Actions are being advanced on a coordinated basis.

The following applications were heard in by the Chambers judge in September of 2015:

(a) an application by the Ammazzini Action plaintiffs to amend their statement of claim;

(b) an application by the Ammazzini Action plaintiffs to certify the action as a multi-jurisdictional class proceeding on behalf of all residents of Canada, excluding British Columbia residents, on which:

(i) the representative plaintiffs in the Fairhurst and Brant Actions appeared and made submissions pursuant to s. 5.1 of the Class Actions Act, SS 2001, c C-12.01 (the "Act") that the Ammazzini Action should be conditionally stayed; and

(ii) counsel for the plaintiff in the Sanderson Action appeared and made submissions that the Ammazzini Action should be certified;

(c) applications by both the Ammazzini Action plaintiffs and the defendants to strike affidavit evidence filed by the other in the certification application; and

(d) an application by the plaintiffs in the Fairhurst and Brant Actions to conditionally stay the Ammazzini Action pending the outcome of the Brant action.¹

The Chambers judge ultimately ordered the Ammazzini Action conditionally stayed until the Brant Action certification application was decided. The Chambers judge also concluded that Brant's right to "make submissions at the certification hearing" as set out in section 5.1 of the Act also included the right for Brant, as a representative plaintiff, to file evidence and to apply for a stay.²

Ammazzini sought leave to appeal the decision of the Chambers judge conditionally staying their proposed multi-jurisdictional class action on a number of grounds, including that the Chambers judge erred by (1) incorrectly expanding the rights granted to a representative plaintiff from another jurisdiction under s. 5.1 of the Act; (2) considering the multi-jurisdictional factors set out in ss. 6(2) and 6(3) of the Act without first completing the certification analysis; and (3) imposing a stay in the circumstances.³

At the same time, the representative plaintiff in the Brant Action applied for status either as a respondent or an intervenor on the leave motion, and if leave is granted to have status as a respondent or an intervenor on the appeal.

In granting leave to appeal, the Court of Appeal found that the notice of appeal raised significant issues "regarding the right of a representative plaintiff from another jurisdiction to make applications at a certification application and the extent to which they may adduce evidence under the authority of s. 5.1 of the Act."⁴

Regarding the issue of Brant's standing, Brant's primary submission was that although not expressed in the Act, his right to participate in the Court of Appeal proceedings flowed from his successful application for a stay before the Chambers judge and the order granted. The Court of Appeal noted that it was not clear whether a judge in Chambers could grant intervenor status for a leave application to Brant but found that the issue of standing was important and should be referred to a panel of the Court along with the appeal of the conditional stay. The Court of Appeal granted leave to Brant to apply to a panel of the Court for status "upon any basis that he deems advisable".⁵

An eventual decision in respect of the appeal of the conditional stay will be important in that it could provide clarity regarding the rights of parties in other jurisdictions to intervene in class action proceedings, as well as the scope and breadth of those rights.

Parties to class action proceedings involving subject-matter that is the same as or similar to proceedings ongoing in other jurisdictions must be alive to the possibility of intervention from parties in these other jurisdictions, and should similarly consider whether strategic reasons exist to intervene in these other proceedings.

Footnotes

1 Ammazzini v Anglo American PLC, 2016 SKCA 73, at para. 7 [Ammazzini].

2 Ibid, at para. 12.

3 Ibid, at para. 16.

4 Ibid, at para. 18.

5 Ibid, at para. 26.

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