Saskatchewan Court of Appeal clarifies the role of out of province representative plaintiffs

In Ammazzini v Anglo American PLC, 2016 SKCA 164, the Saskatchewan Court of Appeal clarified the rights of an out of province representative plaintiff at a certification hearing in Saskatchewan. Section 5.1 of the Saskatchewan Class Actions Act allows a representative plaintiff in an action from another province involving the same or similar subject matter to “make submissions” at the certification hearing for the Saskatchewan action. This provision was part of an amendment package designed to address the increasing frequency of multi-jurisdictional class actions and the challenges that inevitably arise when there are conflicting actions in different jurisdictions involving the same litigants. In Ammazzini, the Saskatchewan Court of Appeal unanimously held that the right to make “submissions” includes both oral and written submissions and can even include filing evidence, but does not go so far as to allow an out of province representative plaintiff to apply for a stay of the proceedings.

Background

The appellants, Daniel Ammazzini and Olson Goldsmiths Inc., are the representative plaintiffs in a proposed multi-jurisdictional class action commenced in Saskatchewan alleging that the defendants inflated the price of diamonds by unlawfully restricting their supply. Similar actions have been brought in Ontario, British Columbia, and Québec.

The applicant, Kirk Brant, is the representative plaintiff in the multi-jurisdictional Ontario proceeding. Pursuant to s. 5.1 of the Act, Brant appeared before the certification judge in Saskatchewan and applied for an order staying the Saskatchewan action pending the certification decision in Ontario. The certification judge granted the stay. The Appellants appealed arguing Brant had no right to file written materials, adduce evidence or apply for a stay.

The Decision

The Saskatchewan Court of Appeal unanimously dismissed the appeal. The Court held that Brant had standing pursuant to s. 5.1 of the Act to file written materials and adduce evidence but the certification judge erred by finding he could seek a stay of the proceeding. However, this did not affect the ultimate result because the certification judge nevertheless had an obligation to consider whether it was preferable to resolve the matter in Ontario.

The Court considered the plain and ordinary meaning of “submissions” and the objective of the legislation. Chief Justice Richards noted that “submissions” confers a right to present information or argument to the certification judge so they are fully apprised of all relevant information. The Court found that the goal of this amendment package was to promote efficient litigation by limiting overlapping class action litigation. Section 5.1 in particular was designed to ensure certification judges are apprised of the nature and status of similar class proceedings in other jurisdictions and the views or perspectives of representative plaintiffs in other class proceedings as to whether the issues should be resolved outside of Saskatchewan. The Court held that allowing both written submissions and evidence, such as affidavits, fit squarely within the meaning of “submissions” and advanced the goals of the legislation.

However, the Court held that s. 5.1 does not authorize an out of province representative plaintiff to bring an application for relief. The Court found that the plain and ordinary meaning of “submissions” did not support a right to formally initiate a proceeding or apply for relief. Moreover, the Act consistently uses the term “apply” where it contemplates participation with entitlement to ask for relief.

The Court upheld the certification judge’s decision because of his independent obligation under s. 6(2) of the Act to consider whether it would be preferable for the matter to be dealt with in Ontario. Section 6(2) expressly provides that where a multi-jurisdictional class action has been commenced elsewhere in Canada the court must consider whether some or all of the claims should be resolved in the other action. The fact that the certification judge took an overly broad view of s. 5.1 did not affect the order since the same result would have been reached if he had refused to entertain the application.

Future Implications

The Saskatchewan Court of Appeal clarified the scope of the s. 5.1 right to make “submissions.” The decision ensures that out of province representative plaintiffs can file both written submissions and affidavit evidence in order to shed light on the important issue of whether it is preferable to resolve multi-jurisdictional claims in another jurisdiction. These entitlements are particularly important in light of the Court’s obligation to consider whether it is preferable to resolve a multi-jurisdictional matter in another jurisdiction.