Nova Scotia Class Proceeding Permanently And Unconditionally Stayed As Abuse Of Process

In BCE Inc. v. Gillis, 2015 NSCA 32, issued on April 9, 2015, the Nova Scotia Court of Appeal considered the doctrine of abuse of process in the context of a proposed class proceeding where a virtually identical action, commenced by the same plaintiffs represented by the same counsel (Merchant Law Group), had already been certified in Saskatchewan. Expressing its disapproval of the practice of having the same plaintiffs file lawsuits in multiple jurisdictions to obtain collateral future advantages, the Court of Appeal overturned the decision of the motions judge and ordered that the Nova Scotia action be permanently and unconditionally stayed. In the course of its judgment, the Court made several notable observations regarding the nature of class proceedings, the role of the Court, and what is (and is not) appropriate conduct by plaintiffs and their counsel. The various Bell defendants /appellants were represented by Robert Deane of Borden Ladner Gervais LLP.

The case was one of many across Canada. In 2004, the same group of plaintiffs (all represented by Merchant Law Group) filed a series of actions in nine provinces alleging that various telecommunications providers had been improperly charging "system access fees". Although the Nova Scotia action was first filed on November 2, 2004, no steps were taken to advance it until 2014.

In the interim, the plaintiffs' efforts were focused exclusively on the action commenced in Saskatchewan, which was certified by an order dated on February 13, 2008 (Frey v. Bell Mobility Inc., 2007 SKQB 328, leave to appeal denied Microcell Communications Inc. v. Frey, [2012] S.C.C.A. No. 42). The certified class was limited in that it excluded customers with arbitration clauses in their contracts and was limited to claims for unjust enrichment based on the contracts. Non-residents, including residents of Nova Scotia, could opt-in to participate in the action (in accordance with Saskatchewan legislation in effect as of 2008). Saskatchewan residents were included on an opt-out basis. The plaintiffs attempted to convert the certification to an opt-out model but were unsuccessful (Frey v. Bell Mobility Inc., 2009 SKQB 165).1

Before analyzing the Nova Scotia claim, the Court of Appeal surveyed the treatment of the various other claims filed by the same plaintiffs in other provinces. In British Columbia (Drover v. BCE Inc., 2013 BCSC 1341), the court found it would be an abuse of process to allow the plaintiffs to...