Alberta Court of Appeal upholds pre-certification stays of duplicative class proceedings
On November 27, 2020, the Alberta Court of Appeal issued its decision in Ravvin v Canada Bread Company, Limited, and upheld a stay of two proposed class action proceedings issued by the case management judge, Rooke ACJQB (written reasons here). The two proposed class proceedings involve an alleged price-fixing conspiracy in the packaged bread market. Importantly, the proposed proceedings are two of twelve duplicative proceedings commenced across Canada in respect of the same alleged conspiracy.
The issues on appeal were whether the case management judge: (i) had jurisdiction to issue the stay order without first hearing the certification application; and, (ii) erred in assessing the factors for issuing such a stay. In reaching its decision, the Court of Appeal provided important guidance on the application of s. 5 of the Alberta Class Proceedings Act, to multijurisdictional proceedings.
Ravvin involved stay orders in two proposed class actions in Alberta: Ravvin v Canada Bread Company, Limited, filed December 22, 2017 and Pfaff v Canada Bread Company, Limited, filed January 5, 2018. Ravvin had initially been proposed as a national class, but was subsequently amended to include only Alberta residents or residents of the prairie provinces. Only the plaintiff in Ravvin appealed the stay order.
A number of other duplicative proceedings had been commenced in various Canadian courts. Stays were granted in Federal Court and Manitoba, and sought in Saskatchewan. A stay application was dismissed by both levels of the British Columbia courts, while the defendants were granted the right to seek a stay based on multijurisdictional factors at the certification hearing.
All stays were issued in favour of a national class proceeding proposed before the Ontario Superior Court of Justice in David v Canada Bread Company, Limited. David was commenced on November 7, 2017 on behalf of all bread purchasers in Canada excluding Quebec, and was awarded carriage on March 1, 2018.
Jurisdiction Pursuant to s. 5 of the Class Proceedings Act
First, the Court of Appeal reviewed the history of multijurisdictional class action proceedings in Canada, citing the “patchwork of legislation across the country” that led to inconsistent principles regarding duplicative proceedings. In so doing, the Court noted that this history demonstrates that we are still “in the evolution of a culture shift” that requires practical mechanisms to consistently address overlapping and duplicative class proceedings in multiple provinces.
In Alberta, multijurisdictional amendments were incorporated into s. 5 of the Class Proceedings Act. If there are current or proposed multijurisdictional proceedings related to a similar subject matter, s. 5(6) requires the court to determine if it would be preferable for some or all of the claims or common issues raised by the prospective class to be decided in proceedings elsewhere. Sections 5(7) and 5(8) list the objectives and factors the court must consider under s. 5(6). The Court of Appeal noted that there is a relationship and overlap between the requirements for certification provided for in ss. 5(1)-(2) and the considerations in respect of multijurisdictional proceedings under ss. 5(6)-(8). For a court to make an assessment under s. 5(6), it must understand the common issues, facts and law engaged by the proposed class(es).
The Court of Appeal concluded that there is no hard and fast rule for when stay applications can be decided in class action proceedings; however, stay applications under s. 5(6) of the Class Proceedings Act may be heard and determined in advance of certification where the objectives of class proceedings are best served. These objectives, as enunciated by the Supreme Court of Canada in Western Canadian Shopping Centres Inc v Dutton, include access to justice, behavior modification, and judicial economy. Ultimately, the Court of Appeal was satisfied that the case management judge had jurisdiction under s. 5 of the Class Proceedings Act to hear the stay application.
Consideration of the objectives and considerations
Second, the Court of Appeal concluded that the case management judge did not err in granting the stay, noting the high degree of deference afforded to stay decisions. An appellate court may only interfere with a stay decision where it is so clearly wrong as to amount to an injustice, or where the chambers judge has misapprehended the facts or made an error in principle.
The Court of Appeal noted that – in making his determination under ss. 5(6)-(8) of the Class Proceedings Act, the case management judge considered that: (i) David is further ahead than Ravvin; (ii) the award of carriage in David meant there must have been a suitable plan, capacity and resources in place to advance the claim on behalf of all prospective class members, nationwide; (iii) in regards to the location of the evidence and witnesses, David is at least as valid as Ravvin because the main defendants have their principle place of business in Ontario and the conspiracy was alleged to have originated in Ontario; and, (iv) there are disadvantages to litigation being conducted in more than one jurisdiction. The case management judge dismissed the plaintiff’s arguments regarding regional market differences, historical jurisprudence permitting parallel proceedings, and the need for Albertans to access their courts. Finally, in response to concern about the interests of Albertan members of the proposed national class, the case management judge permitted the parties to re-appear should the Ontario Superior Court of Justice ignore the law about how national proceedings are to be advanced and settled.
The Court of Appeal found that there was ample reason for granting the stay in accordance with these reasons, and that the case management judge did not consider any irrelevant factors. Accordingly, the appeal was dismissed.
Implications of Ravvin
The Court of Appeal’s decision in Ravvin promotes judicial economy, and ensures that multijurisdictional proceedings can be litigated in a timely and cost effective manner. Indeed, Ravvin is consistent with the broader “culture shift” for courts to embrace early motions that narrow or dispose of cases at the earliest opportunity: see also Hryniak v Mauldin. While Ravvin does not set a hard and fast rule, it provides a practical mechanism for defendants in proposed class actions to stay duplicative and overlapping class proceedings commenced in Alberta, without facing the unnecessary expense, burden and delay associated with a protracted certification application, so long as the case management judge has a sufficient understanding of the nature and particulars of the proposed class proceeding.