As we have previously commented
, defendants are increasingly required to defend parallel class actions brought in multiple Canadian provinces, with all of the added complexity, risks and costs. A significant jurisdictional question which has arisen is: when will a court certify a national class, in the face of overlapping parallel actions in other provinces? Recent decisions of the Queen’s Bench of Alberta and the Ontario Superior Court concerning the nation-wide class actions against Apotex and Leon Farma, explore some of the thorny issues that courts are grappling with in this analysis.
Overlapping Class Actions against Apotex and Leon Farma
In the spring of 2013, it was reported that an $800 million class action was commenced in Ontario against Apotex and Laboratorios Leon Farma, makers of a birth control pill that had been recalled by Health Canada. That fall, a Canada-wide class action was also filed in Alberta and Quebec. The actions were brought on behalf of a similar proposed national class.
The certification of the Quebec action was stayed pending the certification decision in Alberta. This June, the Queen’s Bench decided to certify the Alberta action as a multi-jurisdiction class action with a national class. Since the defendant had consented to certification of the class proceeding for settlement purposes, the only issue before the judge was whether Alberta was an appropriate venue for the proceedings, or whether deference should be granted to the Ontario action. The plaintiffs in the Ontario action intervened in the hearing.
Alberta’s Decision to Certify the National Class
On September 30, 2015, Justice Rooke of the Queen’s Bench released his reasons outlining his analysis of why Alberta was the appropriate venue for the proceedings. He noted that the Ontario plaintiffs can choose to opt out of the Alberta class action and advance their claims in Ontario. The Court’s reasons summarize some of the main considerations in determining jurisdiction, including the differences between the various provincial regimes and how courts will weigh the pros and cons of overlapping actions.
Comparison of Provincial Regimes
Alberta and Saskatchewan both have class action legislation which allows certification of multi-jurisdictional class actions where certain criteria have been satisfied and the province is found to be the appropriate venue for the determination of the proceeding. The court is to analyze certain objective factors, including avoiding irreconcilable judgments, promoting judicial economy and ensuring that the interests of all parties in each of the jurisdictions are given due consideration.
Although the other Canadian jurisdictions – including Ontario – do not have similar legislated mandatory prerequisites, courts of those provinces consider similar factors under the common law in the context of forum conveniens determinations or in applications for carriage and stay of proceedings. We have previously commented on the new amendments to the Quebec Code of Civil Procedure, which will require Quebec courts to “protect the rights and interests of class members resident in Quebec” even if it means a multiplicity of proceedings in multiple provinces. Some provinces – such as Ontario and Newfoundland and Labrador – also have statutes requiring the avoidance of multiplicity of actions.
Considerations in Determining the Appropriate Venue
In coming to his decision, Justice Rooke made the following notable observations:
- The fact that the Ontario plaintiffs had signed up more of the class members, with potentially more serious claims, did not make Ontario any better situated than Alberta to meet the interests of all parties. (Ontario counsel had signed up about 60 prospective class members, as well as most of the provincial health insurers, whereas the Alberta plaintiffs had only communicated with 28 individual potential class members.)
- Although there is a possibility of irreconcilable judgments if Ontario decides to certify a national class proceeding, this was not determinative of the issue. Justice Rooke stated that, “[d]eference by Alberta courts in all cases to jurisdictions that do not have a legislated mandate to avoid irreconcilable judgments would significantly impede prospective class proceedings in Alberta.”
- Parallel actions do not promote judicial economy, however this factor also does not favour either Ontario or Alberta as the more appropriate venue. Justice Rooke encouraged the Canadian Bar Association to “continue or recommence its investigations into, and provide recommendations for, a multi-jurisdictional case management protocol dealing with parallel actions other than settlement.”
- The stage of proceedings was “highly relevant” since the other considerations did not weigh in favour of either of the provinces. The Alberta action was found to be significantly ahead of the Ontario action because it had reached the certification stage, while the Ontario plaintiffs had not yet brought a certification application. This was the only factor that weighed in favour of one province.
- The size of the potential class within each jurisdiction was not a determining consideration.
A settlement approval hearing is to be scheduled for the action in the near future.
Ontario Defers to Alberta, for Now
On September 28, 2015, the Ontario Superior Court dismissed an interlocutory motion and cross-motion in the Ontario action, Kutlu v. Laboratorios Leon Farm, seeking to have two lawyers removed from the record. Justice Perell deferred to the Alberta court and discontinued the “rival” Ontario class action for the time being. Justice Perell held that the Ontario plaintiffs with significant claims have the option of continuing as a joinder of actions. Justice Perell noted that if Justice Rooke rejects the proposed settlement in Alberta, “then the circumstances will have changed again, and counsel for the group can reactivate its request that the action be certified as a class proceeding.”
There are a number of takeaways from these decisions. First, it is noteworthy that the Alberta court did not focus on which jurisdiction had the closest connection to the action, but instead emphasized the fact that the Alberta action was farther along in the proceeding. This raises the question of whether jurisdiction should be based on which case has proceeded the farthest. Another notable takeaway is the Ontario court’s willingness to defer to Alberta on the basis that Ontario claimants with substantial claims had the choice of opting into a joinder of claims, as an alternate to a class action. Overall, these decisions highlight the uncertainty in how courts will exercise their discretion in certifying national class actions and, as Justice Rooke remarked in his decision, the need for further guidance on how multi-jurisdictional cases with parallel actions should be managed by courts.