Canada's Evolving Response to Overlapping Multi-Jurisdictional Class Actions.

• Author: Gordon McKee, S.

NATIONAL and multi-jurisdictional class proceedings have become increasingly prevalent in Canadian courts, often resulting in parallel and overlapping class actions in a number of provinces or territories. A single, national class action may in some circumstances be preferred by defendants, maximizing efficiencies and reducing costs and inconvenience, especially if a global resolution of Canadian claims is a primary objective. Even from the perspective of plaintiffs' and their counsel, the presence of multiple, competing class actions dilute and may even evaporate the positive features of a national class action. (1)

The Vioxx litigation is often regarded as Canada's "low-water mark" for overlapping class actions. Two competing class actions were started and certified in Saskatchewan and Ontario in respect of the same claims and class members. After losing a "carriage motion" in Ontario (a dispute between the competing plaintiffs and law firms over which should be permitted to represent the class), the unsuccessful plaintiffs and their counsel pursued their class action in Saskatchewan and were able to have it certified there before the class certification motion was heard in Ontario. (2) The Ontario court nonetheless certified the overlapping Ontario class action, refusing a stay because the Saskatchewan court had not given comity to the Ontario court's carriage decision. (3) The Ontario certification decision was upheld on appeal. (4) The outcome, for a short period, was that some Canadian residents were members of two different class actions before courts that might reach two different results--until the Saskatchewan Court of Appeals overturned certification of the class action in that province on other grounds, noting that "[t]he potential for chaos and confusion" from the overlapping class actions was "obvious." (5)

Courts in Canada have long recognized that the Canadian constitution makes it difficult to manage overlapping class actions when proceedings are brought in the courts of different provinces. (6) Over ten years ago, Justice LeBel of the Supreme Court of Canada ("SCC") called for provincial legislatures to establish "[m]ore effective methods for managing jurisdictional disputes... in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space." (7)

Several Canadian provinces have answered this call, amending their class proceedings legislation to provide more specific tools for addressing overlapping multi-jurisdictional class actions based on recommendations of the Uniform Law Conference of Canada (the "ULCC"). Ontario is the most recent to adopt the ULCC amendments, with amendments applying to class actions started after October 1, 2020.

This article provides an overview of the tools available to Canadian courts for managing overlapping multi-jurisdictional proceedings and offers some strategic considerations that may affect a defendant's decision about which to use.

1. Forum Non Conveniens

   Forum non conveniens is one tool available to manage competing, overlapping, multi-jurisdictional class actions, although it has been used infrequently in this context. (8) The doctrine can be used to seek a stay of one class proceeding early on in the case, where the other forum is clearly a more appropriate one to litigate the class action, looking at factors such as location of witnesses, parties and documents, impact on related/parallel proceedings, possibility of conflicting judgments, and relative strength of the connections to each jurisdiction. (9) Forum non conveniens may have been underutilized in the class action context because of difficulties in showing that one forum is clearly more convenient where the claims and proposed classes are national in scope. Furthermore, defendants may have preferred not to suggest or be perceived as implicitly conceding that there was a proper forum for any such class action in any province.

2. Abuse of Process

   Abuse of process is another tool that can be used without the need to suggest that there is any single convenient forum for the proposed class action. Abuse of process exists to prevent the misuse of the court's procedure in a way that would be manifestly unfair to a...