Written By Ashley L. Paterson and Ethan Z. Schiff

Overview

In Spicer v Abbott Laboratories Ltd, 2017 SKQB 271 [Spicer], Justice Barrington-Foote declined to stay a class action even though parallel proceedings brought by the same counsel were dismissed in Québec, British Columbia and Ontario. Justice Barrington-Foote acknowledged that pre-certification applications to stay a proceeding as an abuse of process will be granted where they are fair and efficient. After addressing factors which strongly indicated an abuse of process, he exercised his discretion to permit the action to continue in recognition of changes in the law and the importance of access to justice in the class actions context.

The Cases in Québec, Ontario and British Columbia

The Québec class action was denied authorization in 2012; the corresponding appeal was dismissed in 2013. The Ontario class action was permanently stayed after the plaintiffs unsuccessfully moved for a temporary stay in favour of moving the British Columbia case forward and then failed to deliver their certification record. In British Columbia, the Court of Appeal denied certification because there was no evidence of a methodology that would enable the plaintiffs to prove causation class wide.

The Case for Abuse of Process

Spicer, like the dismissed actions in other provinces, arose from alleged injuries caused by products containing sibutramine. The action was commenced in 2011 and remained dormant until the parallel proceedings were all dismissed. Justice Barrington-Foote identified five factors indicating that Spicer was an abuse of process:

1. The claim and the parallel claims all included substantially similar allegations of fact, class identity, asserted claims and relief sought.
2. Merchant Law Group represented the plaintiffs in the proceedings in all jurisdictions (a factor which previous case law has noted opens “the door to abuse”)¹.
3. While the parallel proceedings were ongoing, the Spicer action served as an “inappropriate insurance policy against an unsuccessful outcome” in another jurisdiction, which was, for that time, “parked”, “duplicative” and served “no purpose other than tolling the limitation period”.
4. The plaintiff was seeking a “second bite at the cherry” by effectively relitigating the issues considered in the parallel proceedings.
5. The defendants endured a heavy burden in defending the various actions in multiple jurisdictions.

Justice Barrington-Foote concluded that the above factors indicated that it would be an abuse of process for the action to proceed and that it “could be characterized as a misuse of the court’s procedure, in a way that would be unfair to the defendants and bring the administration of justice into disrepute.”

Discretion to Excuse Abuse of Process

However, even in light of the above findings, Justice Barrington-Foote concluded that a change in the law provided enough basis to exercise his discretion to excuse an abuse of process.

When the plaintiffs in the parallel proceedings were prosecuting their claims, the law was uncertain as to whether causation could be certified as a common issue without adducing evidence of a methodology for establishing causation class wide. Subsequent Supreme Court of Canada cases established that evidence of such a methodology is necessary, which, Justice Barrington-Foote concluded, could have induced the plaintiffs to pursue a different strategy.

The court acknowledged that excusing an abuse of process without a sharp change in the law constituted a “slippery slope”, but held that ensuring access to justice in the class actions context was sufficiently important to permit continued prosecution of “the last surviving sibutramine class action”.

Should Defence Counsel Abandon Stay Motions in Saskatchewan?

Not necessarily. Canadian courts continue to struggle with finding the right balance for ensuring fairness and efficiency in national class actions. Given the weight that Justice Barrington-Foote gave to Spicer’s status as the last remaining sibutramine class action, defence counsel in multijurisdictional class actions should consider seeking to stay parallel proceedings before resolution of the principal actions. This case suggests that such parallel actions, especially when filed by the same lawyer or law firm and not pursued for extended periods of time, may be appropriately stayed pending the outcome of other actions. Further development of these issues will remain significant to all defendants facing multijurisdictional proceedings.

¹ Bear v Merck Frosst Canada & Co, 2011 SKCA 152 at para 75.

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