Hafichuk-Walkin V BCE: Manitoba Becomes The Fifth Province To Shut Down Duplicative Class Actions As 'Abuse Of Process'

On March 14, 2016, the Manitoba Court of Appeal issued its long-awaited decision in Hafichuk-Walkin v BCE, 2016 MBCA 32, joining the increasing number of Canadian appellate courts that have stayed duplicative class actions using the "abuse of process" doctrine.

In 2004, the Merchant Law Group (MLG) instituted nine essentially identical proceedings in every province in Canada except Prince Edward Island, seeking to certify a national class action against various wireless telecommunications companies with regard to "system access fees" charged in connection with cellular phone service. MLG chose to pursue the proceedings in Saskatchewan, at the time a "no costs", opt-in1 jurisdiction, while leaving the others dormant. MLG was only partly successful in certifying a class proceeding before the courts in Saskatchewan, with the court certifying a national class action only with regard to one aspect of its claim, but not others. MLG then made numerous unsuccessful attempts to convert the Saskatchewan proceeding from an opt-in to an opt-out proceeding and to...