The Nova Scotia Court of Appeal’s recent decision in BCE Inc. v. Gillis permanently and unconditionally stayed a class proceeding that had laid dormant for over a decade as the plaintiffs pursued a class proceeding in Saskatchewan. Once the plaintiffs were unable to obtain all sought relief in Saskatchewan, renewed interest emerged in actions in Nova Scotia (and elsewhere). The Court of Appeal held that the Nova Scotia proceeding was an abuse of process.
The Court was careful to note that it is not per se inappropriate to commence class proceedings in multiple jurisdictions. Indeed, multiple class proceedings may be expected at times. But when a claim is commenced for illegitimate reasons or is neglected for a lengthy period of time, an abuse of process may be found.
In 2004, the same plaintiffs, represented by the same counsel, commenced prospective class proceedings in nine jurisdictions across Canada. In Nova Scotia, no steps were taken to advance the litigation until amendments to the pleadings in April 2014. Rather, the claim was being pursued in Saskatchewan. Indeed, in 2006, class counsel stated that "[i]f Certification proceeds in Saskatchewan it is unlikely that we will ever pursue matters in Nova Scotia."
Not all common issues were certified in Saskatchewan. Then, a motion to convert the class proceeding from an “opt-in” proceeding (whereby prospective class members would need to take positive steps to be part of the class) to an “opt-out” proceeding (where individuals in the class definition would automatically be part of the class unless they took positive steps to opt out) was denied. The plaintiffs then took steps to advance the litigation elsewhere. The defendants moved to stay the Nova Scotia proceeding (among others) as an abuse of process.
The plaintiffs submitted that multiple proceedings in different jurisdictions are common in the class action context. The Nova Scotia Court of Appeal accepted this, but noted that in the instances cited by the plaintiffs, while “the defendants and the subject-matter were the same[,] the plaintiffs were not.”
The Court did accept that it may be permissible at times to commence actions in more than one jurisdiction. However, such circumstances need to be analyzed to determine whether a particular action is an abuse of process.
While emphasizing that “abuse of process is a contextual issue that must be assessed in the context of the specific case”, the Court was satisfied that an abuse of process was present on the facts of this case. Relevant factors in this respect included:
- lack of intention to prosecute the Nova Scotia action at the outset – a claim brought without an intent to prosecute serves no proper purpose;
- the timelines contemplated for the prosecution of a class proceeding “do not contemplate that proceedings will languish for ten years after being commenced”;
- while a multiplicity of proceedings may be necessary and acceptable in the Canadian federation, this does not permit parties to leave actions that have been commenced in some provinces in limbo without considering the wishes of the defendant;
- the “opt-in” nature of Saskatchewan’s proceeding did not necessarily put Nova Scotia residents at a disadvantage;
- “residents of any particular province do not have an absolute right to bring a proceeding in their own province” (were that so, a forum non conveniens motion could never succeed);
- the actions of class counsel suggested a stay was appropriate;
- it is inappropriate to file an action for the sole purpose of tolling a limitation period if there is no intention to prosecute the case (this is distinct from commencing but not prosecuting a case while there is an ongoing investigation or settlement discussions); and
- the reason for the renewed interest in Nova Scotia was to obtain relief that had been denied by the Courts of Saskatchewan – this was “an extraordinary abuse of process”.
Again, Gillis does not stand for the proposition that commencing class proceedings in multiple Canadian jurisdictions will necessarily be an abuse of process. However, plaintiffs cannot neglect certain proceedings for years and seek to pursue them only once they have failed to obtain relief elsewhere. In conclusion, the Nova Scotia Court of Appeal held:
This case was an abuse of process from the outset when the claim was filed with no intention to prosecute it here. The abuse was compounded by the filing of nine virtually identical claims. The respondents made it clear many years ago that Saskatchewan was the forum of choice. That was a choice made with the assistance of legal counsel. The respondents must live with that decision. It is time the respondents be forced to pick cherries from a single tree; the one groomed for so many years, while the one in Nova Scotia was neglected.