Ontario and Alberta face-off in multijurisdictional hockey player class action
Parallel class proceedings – where the same or similar causes of action and allegations are advanced by plaintiffs in support of proposed class actions in multiple provinces across Canada – are becoming increasingly common and complex. As we have previously discussed, Canadian courts have repeatedly endorsed the principles of judicial economy and applied various procedural mechanisms in an effort to avoid a multiplicity of proceedings in the class actions context. More recently, the Canadian Bar Association passed a resolution approving a revised “Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions and the Provision of Class Action Notice” [PDF], which proposes a framework for a coordinated approach to multijurisdictional class actions.
However, the recent decisions arising out of two parallel class proceedings confirm that the mere fact of overlap between putative class actions in different provinces will not necessarily be dispositive. More specifically, two proposed class actions were commenced on behalf of junior hockey players alleging that they were unlawfully denied employment status and associated benefits by the defendant hockey clubs in Ontario and Alberta, respectively (Berg v Canadian Hockey League in Ontario and Walter v Western Hockey League in Alberta). Both the Ontario and Alberta class actions were certified last year, the Ontario court decision being released a couple months before the Alberta court decision. In its judgment last month, the Alberta Court of Appeal upheld the Alberta lower court’s decision to certify all of the plaintiffs’ claims despite redundancy.
Importantly, there were also noteworthy differences in the Ontario and Alberta courts’ treatment of the same causes of action, which serve as a note of caution for defendants confronted with overlapping proceedings in different jurisdictions.
Where the face-off begins: Causes of action
The Ontario and Alberta courts differed in their treatment of the causes of action pleaded by the plaintiffs in the respective proceedings. The Ontario court only certified the claims for breaches of employment law statutes and unjust enrichment against the hockey clubs located in Ontario, and refused to certify the remaining causes of action such as breach of contract, negligence and conspiracy. As we discussed last year, the Ontario court held that the majority of the plaintiffs’ proposed claims were redundant and added little, at a tremendous cost.
In contrast to the Ontario certification decision, the Alberta court refused to strike causes of action that were properly pleaded, even though they were redundant and open to summary dismissal upon proper application. The Alberta Court of Appeal held the following:
While in general terms, litigation is often not well served by a proliferation of alternative and either redundant or inconsistent forms of claim, such as contract, fiduciary duty, statute-based causes of action, conspiracy and other torts, the certification stage is not necessarily an appropriate stage to assess whether the pleading of such alternatives creates problems, or engenders injustice.
A pillar of the Alberta lower court’s analysis is that certification motions are procedural motions only; as such, the courts are not to assess or determine the merits of the plaintiff’s claim or resolve factual disputes. The Alberta court applied the Alberta Class Proceedings Act criteria for certification, which mirror Ontario’s statute, and in doing so, found that the causes of action were properly pleaded by the plaintiffs.
The Ontario court, however, took a much broader approach in its preferable procedure analysis. In particular, the Ontario court determined that, even though the causes of action were properly pleaded, the majority of the causes of action should not be certified for reasons of efficiency and judicial economy.
The game continues
Defendants in these types of proceedings should therefore take note: where parallel proceedings are adjudicated by courts of different provinces applying the same certification criteria, there is no guarantee that the courts will determine the certification criteria in the same way. For example, although encouraging the plaintiffs to simplify their claims, the Alberta court was not prepared to rule out these claims at the certification stage, whereas the Ontario court decided to reduce the needless complexity and cost to the class proceeding by only certifying two of the seven causes of action.
As we have highlighted before, defendants should continue to exercise caution when faced with redundant or overlapping claims, and mount a vigorous defence to every articulated claim. Of equal importance, defendants should continue to consult their counsel about their ongoing options to challenge such claims at the appropriate time.