• About
  • Offices
  • Careers
  • News
  • Students
  • Alumni
  • Payments
  • FR
Background Image
Bennett Jones Logo 100 Years
  • People
  • Expertise
  • Knowledge
  • Search
  • FR Menu
  • Search Mobile
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
View all
Practices
Corporate Litigation Regulatory Tax View all
Industries
Capital Projects Energy Funds & Finance Mining View all
Advisory
Crisis & Risk Management ESG Strategy and Solutions Governmental Affairs & Public Policy
View Client Work
International Experience
Insights News Events
New Energy Economy Series Business Law Talks Podcast Economic Outlook
ESG & the CIO Subscribe
Bennett Jones Centennial Menu
People
Practices
Industries
Advisory Services
Client Work
About
Offices
News
Careers
Insights
Law Students
Events
Search
Alumni
Payments
Subscribe

Stay informed on the latest business and legal insights and events.

LinkedIn LinkedIn Twitter Twitter Vimeo Vimeo
 
Blog

Conflicting Decisions on Whether Parallel Class Actions Constitute An Abuse of Process

April 16, 2015

Written By Ashley Paterson

Two recent decisions of the Nova Scotia Court of Appeal and the Court of Queen's Bench of Alberta have come to opposite conclusions regarding whether it is an abuse of process to file the same class proceeding in multiple jurisdictions: BCE Inc v Gillis and Turner v Bell Mobility.

Both cases were filed by the same law firm and concerned the same allegations related to system access fees charged to owners of cellular phones. Proposed class actions were filed in nine jurisdictions across Canada, including Nova Scotia, Alberta and Saskatchewan. A class action was certified in Saskatchewan and, as a result, the defendants in Nova Scotia and Alberta sought to strike out or stay the actions in those jurisdictions on the basis that it was an abuse of process due to the ongoing action in Saskatchewan.

In Alberta, Justice Rooke denied the application to permanently stay or strike the action. His reasons turned on his analysis of access to justice in the class action context. He noted that the proper administration of justice requires "that all litigants and class members have the right to full, not limited, access to the courts in their jurisdiction." The proposed class action in Alberta would be an "opt-out" class, meaning that class members would be automatically included in the class with the option to opt-out and pursue individual litigation if they so chose. By contrast, in order to participate in the Saskatchewan action, non-Saskatchewan residents would be required to take the active step of opting in. These findings caused Justice Rooke to conclude that opt-in provisions for non-residents are a significant detriment to the non-resident class members which, in certain circumstances will justify the multiplicity of proceedings.

Justice Rooke acknowledged that there was, at one point, an active national debate relating to the ongoing problem of overlapping and parallel class actions that he hoped his reasons would revive.

Indeed they may have. Justice Scanlan, writing for the Nova Scotia Court of Appeal just a month later, disagreed with Justice Rooke's analysis finding that it "is not consistent with the weight of jurisprudence and inevitably ignores the choices and actions of representative parties and their counsel." Further, that Justice Rooke's reasoning will "virtually always result in a multiplicity of actions where there is a perceived advantage to the residents of the province in which the motion is brought."

Justice Scanlan noted that the residents of any particular province do not have an absolute right to bring a proceeding in their own province since, if that were true, no plaintiff would ever lose a forum non conveniens motion in his own province. Justice Scanlan concluded that he would not follow Justice Rooke's reasons because he did not agree that the opt-in versus opt-out distinction trumps a proper abuse of process analysis. Needless to say, Justice Scanlan stayed the action in Nova Scotia. It may be necessary for the Supreme Court to resolve this debate for class action litigants and lawyers to have any certainty on the law in this area.

Download PDF

Author

  • Ashley L. Paterson Ashley L. Paterson, Partner

Celebrating our Centennial Chronicle

Related Links

  • Insights
  • Media
  • Subscribe

Recent Posts

Blog

Field Notes: Recent Pesticide Initiatives in Canada

January 26, 2023
       

Blog

Canada Border Services Agency Publishes Update of [...]

January 25, 2023
       

Blog

Balancing Act: Facilitating Trade and Worker Protection [...]

January 18, 2023
       

Blog

Accounting for Oil and Gas Revenues Without an Operating Agreement

January 10, 2023
       

Blog

Ontario Court of Appeal Considers Interpretation of [...]

January 09, 2023
       
Bennett Jones Centennial Footer 100 Years
Bennett Jones Centennial Footer 100 Years
About
  • Leadership
  • Diversity
  • Community
  • Innovation
  • Security
  • History
Offices
  • Calgary
  • Edmonton
  • Montréal
  • Ottawa
  • Toronto
  • Vancouver
  • New York
Connect
  • Insights
  • News
  • Events
  • Careers
  • Students
  • Alumni
Subscribe

Stay informed on the latest business and legal insights and events.

LinkedIn LinkedIn Twitter Twitter Vimeo Vimeo
© Bennett Jones LLP 2023. All rights reserved.
  • Privacy Policy
  • Disclaimer
  • Terms of Use
Logo Bennett Jones