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Canadian Class Actions Monitor

The Role of Representative Plaintiffs from Other Jurisdictions: An Update

Posted in Class Actions
Theodore StathakosAndrew Foster

We previously reported in June 2016, on a Saskatchewan Court of Queen’s Bench decision holding that, in certain circumstances, a representative plaintiff in a multi-jurisdictional class action in a province other than Saskatchewan can (a) adduce evidence and make argument in a certification application in a Saskatchewan class proceeding and (b) apply for a stay of that Saskatchewan proceeding (Ammazzini v Anglo American PLC, 2016 SKQB 53). This decision was based on section 5.1 of The Class Actions Act, which provides generally that a representative plaintiff in a multi-jurisdictional class action commenced in a province elsewhere in Canada involving the same or similar subject-matter “may make submissions at the certification hearing” in the Saskatchewan class proceeding. The Court of Queen’s Bench granted a stay of the Saskatchewan class proceeding upon the application of a representative plaintiff in a similar Ontario class proceeding action (the “Ontario Plaintiff”). This decision was appealed to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal has now decided that the Court of Queen’s Bench was correct to permit the Ontario Plaintiff to adduce evidence and present arguments in the certification application, but that section 5.1 could not be construed so broadly as to permit him to apply for a stay of the Saskatchewan class proceeding (Ammazzini v Anglo American PLC, 2016 SKCA 164).

The Court of Appeal held that the Ontario Plaintiff’s right to make “submissions” pursuant to section 5.1 was not limited to the right to make oral representations, but included the right to make written argument and adduce evidence. The Court of Appeal held that section 5.1 was intended to confer a right to present information or argument to the certification judge so that he or she can be fully informed of all relevant information,[1] but in particular, of information required to determine whether it would be preferable for the claims or common issues raised in the Saskatchewan class proceeding to be resolved in a different proceeding in another jurisdiction.[2]  In order to make this determination, the certification judge should be informed of (1) the nature and status of class proceedings in other jurisdictions and (2) the views or perspectives of the representative plaintiffs in other class proceedings regarding the resolution of claims outside of Saskatchewan.

On this basis, the Court of Appeal concluded that the right to “make submissions” did not extend so far as to confer the right to apply for a stay of the Saskatchewan class proceeding. For one thing, the plain meaning of making “submissions” did not include the right to initiate a proceeding that may result in specific relief.[3]  In addition, in other provisions by which the statute conferred the right to make an application, the word “apply” was specifically selected.[4]  Its absence from section 5.1 suggested that the Legislature did not intend for that section to confer a right to make an application.  Finally, it did not serve the purpose of section 5.1 (to ensure that the certification judge could make an informed decision regarding certification) to also allow representative plaintiffs from other jurisdictions to initiate applications that could change the course of a class proceeding in Saskatchewan.

Although overturning part of the certification judge’s interpretation of section 5.1, the Court went on to rule that the judge was right to order a stay of the Saskatchewan class proceeding pursuant to section 6(2).  That section provides that, where a multi-jurisdictional class action commenced elsewhere involves the same or similar subject-matter to the Saskatchewan class proceeding, the judge must consider whether it would be preferable to deal with the claims in the other action.  Thus, the certification judge was required to perform the very same analysis that the judge did perform in deciding the Ontario Plaintiff’s stay application.  Indeed, the certification judge expressly held that, even were it not for the stay application, he would have granted the same stay order.[5]  The Court of Appeal agreed with this conclusion and the stay order was therefore upheld.

The Court of Appeal’s decision in this case has further clarified the role that a representative plaintiff from a jurisdiction other than Saskatchewan may play in a Saskatchewan class proceeding. Such a plaintiff may make oral and written argument and adduce evidence but may not initiate applications such as stay applications.

[1]           Ibid, at paras 30, 45.

[2]           Ibid, at para 45.

[3]           Ibid, at para 50.

[4]           Ibid.

[5]           Ibid, at para 53.