Abuse Of Process: Carbon Copy Class Actions Stayed By Courts Coast To Coast

Over the past year the Nova Scotia, Alberta, and Manitoba Courts of Appeal have each found the same action within their respective jurisdictions, brought by the same law firm on behalf of the same plaintiff class is an abuse of process.1 Unlike in ordinary litigation, where it is prima facie vexatious and oppressive for a plaintiff to sue concurrently in two courts on the same matter, overlapping and parallel class actions commenced in different jurisdictions are not, necessarily, abusive or vexatious. 2 A real issue arises however, when class counsel bring the same action in multiple jurisdictions as part of an overall litigation strategy to toll limitation periods, retain carriage of the matter, or achieve procedural advantages based on jurisdiction. In this case, class counsel filed across the country for all of the above reasons and as a "form of insurance for the possibility of an unsuccessful result" in the province in which the action was pursued. 3 In these circumstances, three appellate courts held that the case was an abuse of process and should be unconditionally stayed.

Leave to appeal to the Supreme Court of Canada has been sought from the Nova Scotia Court of Appeal, although the deadline for the respondents' materials was based on the timing of the Alberta Court of Appeal and Manitoba Court of Appeal decisions. The Supreme Court of Canada is faced with a unique situation: not only is same issue being considered by courts across Canada, but, in fact, the exact same case. It remains to be seen whether bringing carbon copy class actions across Canada as part of a litigation strategy and without the intention to pursue the action (except in one province), will likewise be condemned by the Supreme Court of Canada.

The SAF Actions

In 2004, national class actions were filed by the same class counsel in every province, except PEI, alleging that wireless service providers improperly charged and collected "system access fees" ("SAF") from customers. Class counsel then only pursued certification in Saskatchewan 4 while it "parked" the actions in the other provinces. SAF class actions in British Columbia, Alberta, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland were left at the pleadings stage for the better part of a decade.

Within the last couple of years, the defendants have brought applications to have the SAF actions dismissed or stayed as an abuse of process across the country. Various courts have commented that the SAF actions were "essentially carbon copies" 5, "virtually identical" 6 and "similar in the extreme". 7 Courts in British Columbia, 8 Manitoba, 9 Nova Scotia, 10 Saskatchewan, 11 and Alberta, including appeal courts, have now grappled with the propriety of this litigation strategy.

SAF Litigation in Saskatchewan

In order to understand the most recent decisions, it is necessary to consider the SAF litigation in Saskatchewan and particularly the Frey/Chatfield action. It is this background which the Alberta Court of Appeal held "clearly exemplifies why the Turner action amounts to an abuse of process". 12

The certification application for Frey/Chatfield was initially heard and denied in 2006. 13 However, the Court granted leave to reapply for certification. The Court also held that...