New dimensions of preferable procedure: “jurisdictional preferability” and multijurisdictional class proceedings

In order to be certified, a proposed class proceeding must be deemed the “preferable procedure” for resolving the plaintiff’s claims. The preferable procedure analysis takes on new dimensions where a proposed class proceeding is one among several overlapping proceedings commenced in other jurisdictions – an enduring trend that we have previously written about here and here. In recent years, professional bodies, legislatures and courts have taken various measures to address how the preferability analysis changes in the context of multijurisdictional class proceedings, and when “jurisdictional preferability” should be assessed.

In Forster v. Monsanto Company, 2020 BCSC 1376, the Supreme Court of British Columbia considered these questions, in light of a new protocol designed to manage multijurisdictional class proceedings and related amendments to the Class Proceedings Act, RSBC 1996, c 50 (the “BC CPA”). Forster also provides insight on key distinctions between the legislative amendments to the BC CPA and the Ontario Class Proceedings Act, 1992, SO 1992, c 6 (“Ontario CPA”) as they pertain to multijurisdictional class proceedings. We have previously written about the amendments to the Ontario CPA here.

Background

The plaintiff in Forster commenced a proposed class proceeding on behalf of a BC-only class, alleging that the defendants’ herbicide caused illness in the plaintiff class (the “BC Proceeding”). Three parallel class proceedings had already been commenced on behalf of national classes in Ontario (the “Ontario Proceeding”) and Nova Scotia (the “Nova Scotia Proceeding”), in addition to a Quebec-only class proceeding in Quebec. The most advanced proceeding was the Ontario Proceeding, where the plaintiff had served a certification record, and the certification motion was scheduled to be heard in February 2021.

Adoption of the Multijurisdictional Class Actions Protocol in provincial class proceedings legislation

In 2018, the Canadian Bar Association developed the Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions and the Provision of Class Action Notice [PDF] (the “Protocol”), with the goal of establishing standardized best practices for counsel and judges managing class proceedings with parallel actions in other provinces.

BC and Ontario have both adopted the Protocol and amended their respective class proceedings legislation accordingly. In 2018, the BC CPA was amended to explicitly provide that where there are parallel multijurisdictional proceedings, the court must consider whether the claims are better resolved in a proceeding commenced elsewhere (s. 4(3)). The amendments also include a new provision that enumerates factors the court ought to consider in determining “jurisdictional preferability” – including the alleged basis of liability, the relative progress of each proceeding, and the location of evidence and witnesses (s. 4(4)). Similar amendments were made to the Ontario legislation, with a key distinction further discussed below.

Protocol does not displace general “Certification First” principle

In Forster, the defendants had signaled their intent to file certain preliminary applications, including an application to stay the action as an abuse of process, in light of the overlapping proceedings in other provinces. The defendants argued that the Protocol, read purposively, dictated that applications to stay on abuse of process grounds should be heard before certification, to eliminate duplication at the earliest opportunity.

The Court disagreed and ordered that the defendants’ applications be heard at certification. The Court held that the Protocol was primarily a “procedural facilitator” that did not displace earlier case law setting out the general “certification first” principle, and noted that the new jurisdictional preferability provisions were found under the heading “Class Certification” – indicating that the legislature contemplated determination of that issue at certification and not before. (The Court observed that in contrast, the Ontario CPA, as amended, now explicitly provides that the court may determine a motion to stay based on jurisdictional preferability before certification – see s. 5(8) of the Ontario CPA.)

However, the Court concluded that s. 4(3) does not automatically preclude a pre-certification stay application in appropriate circumstances where the BC proceeding is manifestly less preferable, for example if the BC proceeding may be statute-barred or presents an obviously unfit representative plaintiff. The Court also noted that the relative advancement of the other proceedings weighs in favour of the early determination of preliminary applications – for example, it may be appropriate for the court to determine an application to stay or strike before certification, “where the horse in another jurisdiction is much faster out of the gate, and under the control of a skilled and steady rider”.

Shared defence counsel and plaintiff delay relevant factors in sequencing analysis

In considering the well-established list of factors that typically guide sequencing motions (the “Cannon/Branch factors”), the Court determined that greater weight should be accorded to the objectives of avoiding inefficiency and multiplicity, in light of the Protocol and related legislative amendments. The Court made the following comments relating to the “jurisdictional preferability” analysis:

  • Efficiencies achieved by the application: While the defendants’ stay application had the potential to resolve the entire BC Proceeding, there was considerable overlap between the “preferable procedure” and the “preferable jurisdiction” inquiries. The Court viewed both inquiries as better determined at certification with the benefit of a full evidentiary record.
  • Economy and judicial efficiency: The Court noted that the defendants were represented by the same counsel in all of the parallel proceedings and would have to prepare certification materials in the Ontario Proceeding, and potentially others as well – suggesting that the defendants could, with modest additional effort, adapt the certification materials filed in the Ontario Proceeding for the BC Proceeding. The Court also took note of the fact that the defendants had not consented to certification of the Ontario Proceeding, and it would compound delay if the BC Proceeding was stayed only to be reactivated if the Ontario Proceeding was not ultimately certified.
  • Plaintiff delay in advancing certification: The Court also indicated that, post-Protocol, plaintiffs would be wise to demonstrate proactive diligence by delivering certification materials “as soon as reasonably possible”, even, in some cases, before defences have been filed. Such a step would signal to the court that the plaintiff was genuinely invested in the proceeding to advance the claim, rather than for some other strategic purpose.

Conclusion

As the first case in BC to consider the Protocol and the new codified “jurisdictional preferability” analysis, Forster highlights novel strategic considerations for defendants facing parallel class proceedings in multiple jurisdictions. While the case illustrates BC courts’ inclination to defer the determination of preliminary applications to certification, the Court also identifies specific factors that could render a proposed class proceeding vulnerable to pre-certification applications – which may prove insightful to defendants considering how, and when, to resist multiple parallel proceedings.

The reasoning adopted in the Forster decision also raises a number of potential issues from the defence perspective. In particular, the apparent “default” position adopted by the BC courts that jurisdictional preferability should be resolved at certification seemingly undermines the rationale for the inclusion of this enumerated ground in the BC statute – a tension that the Ontario legislature appears to have recognized by explicitly permitting pre-certification stay applications. This is particularly so where an overlapping proceeding in another jurisdiction is significantly more advanced, such that the question of jurisdictional preferability may not even be resolved before it becomes effectively moot. The Court’s reliance on the fact that the same counsel were involved in the respective proceedings and could therefore ostensibly “replicate” the materials filed in the other jurisdictions would also seem to conflict with the legislature’s express acknowledgement that the avoidance of overlapping proceedings in multiple jurisdictions is a goal that should be fostered by the courts.

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Editors

Deborah Glendinning

Partner, Litigation

Sonia Bjorkquist

Partner, National Chair, Litigation

Éric Préfontaine

Partner, Litigation

Christopher Naudie

Partner, Litigation

Craig Lockwood

Partner, Litigation

Tristram Mallett

Partner, Litigation

Karin Sachar

Partner, Litigation