The Latest On Pre-Certification Stays In Multijurisdictional Class Actions

• Published date: 09 February 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions
• Law Firm: Bennett Jones LLP
• Author: Ms Laura Gill, Cheryl M. Woodin, Ashley Paterson, Christine A. Viney and Alicia Yowart

A recent decision of the Alberta Court of Queen's Bench addresses the challenges of considering a pre-certification application to stay a class action when the decision may impact an overlapping proceeding in another jurisdiction. The decision aligns with an emerging shift in class action litigation, which supports national coordination and communication between courts to adjudicate issues in multijurisdictional class actions.

In Britton v Ford Motor Company of Canada, 2021 ABQB 17, the plaintiff commenced a proposed class action in 2019 against Ford Motor Company of Canada alleging that Ford had designed, manufactured or distributed vehicles with defective engines and spark plugs. The same law firm that acted for the plaintiff had started a nearly identical proceeding in Saskatchewan seven years earlier. Ford applied to stay the Alberta action before the plaintiff's certification application, arguing that it was an abuse of process because both the Alberta and Saskatchewan actions were parallel claims, advanced against the same defendants, and involved the same dispute. Ford argued that the Alberta action was duplicative and did not have a legitimate purpose.

In considering Ford's application for a stay, the Court cited the Alberta Court of Appeal's decision in Ravvin v Canada Bread Company, Limited, 2020 ABCA 424, which our Class Action Litigation group recently discussed in Pre-Certification Stays in Multijurisdictional Class Actions: Ravvin v Canada Bread Company, Limited. Ravvin confirmed that stay applications before certification are discretionary and may be appropriate where the case management judge has a sufficient understanding of the nature and particulars of the proposed class proceeding, and where doing so would advance the objective of judicial economy. In Britton, the court reiterated that duplicative national class proceedings that do not serve a legitimate purpose ought to be avoided because they often undermine the three policy objectives of class proceedings (judicial economy, access to justice and behaviour modification), noting that the challenge in managing multijurisdictional class actions was the lack of a national, coordinated approach to class action management.

The Court dismissed Ford's application for a stay on the basis that Ford had not met the onus of establishing an absence of a legitimate purpose for the duplicate claims. The Court noted that Ford had effectively reversed the onus and left it to the plaintiff to...