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. 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. 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.… Continue Reading
The B.C. Court of Appeal increasingly stands alone in refusing to limit the scope of discovery in class actions to the common issues. A closer look, however, reveals that the difference may be more rhetorical than real.
Two years ago, in June 2013, the B.C. Court of Appeal upheld the B.C. Supreme Court’s ruling in Stanway v. Wyeth Canada Inc. that the scope of discovery in class actions is not limited by the common issues. The court held that the usual rule—relevance and materiality, as defined by the pleadings—applies.
By contrast, in Ontario and Alberta—and now in Nova Scotia—the scope of discovery is generally restricted to the common issues.… Continue Reading
One of the challenges faced by defendants in class actions is when the same claim is brought multiple times in different provinces. This practice is common for class counsel looking to toll limitation periods or to achieve an advantage by pursing the action in a plaintiff-friendly province.
One interesting case which is making its way through courts across Canada involves allegations that a charge by cellular and wireless telecommunication services providers of “system access fees” was unlawful (the “System Access Fees Claim”). Filed in 2004, the same System Access Fees Claim, brought by the same law firm, on behalf of the same plaintiffs against the same defendants was filed in 9 of the 10 provinces leaving out only Prince Edward Island (which does not have class action legislation).… Continue Reading
On June 5, 2014, the B.C. Supreme Court refused to certify a proposed class action against a group of cell service providers (Rogers, Fido, Bell Canada, and Telus). The action related to a “system access fee” charged by each of the defendants. The plaintiff claimed that the defendants misrepresented that the fee was a tax or license fee that went directly to the government. He alleged that this was a “deceptive act or practice” and therefore a breach of the BC Business Practices and Consumer Protection Act (“BPCPA”) and that the defendants were “unjustly enriched” by the collection of these fees.… Continue Reading
There are several key jurisdictional questions raised by this case relating to the enforceability of class action judgments issued in one province that purport to bind class members from other provinces. The case is now before the Supreme Court of Canada which will be considering such issues as (a) what are the territorial limits under the Canadian Constitution on a provincial court’s assertion of jurisdiction in a class proceeding over residents of other provinces and (b) whether a provincial court has a more expansive jurisdiction in a class proceeding than in an ordinary proceeding to determine the rights of residents of another province concerning transactions occurring wholly within that province. … Continue Reading
Cannon v. Funds for Canada Foundation, 2013 ONSC 7686
In this class action decision Justice Belobaba of the Ontario Superior Court of Justice set out new, generous guidelines for assessing contingency fee requests by class counsel in the context of a settlement of an action. Courts have adopted different methods for assessing whether contingency agreements should approved including the “lodestar” approach, the “multiplier” approach, combinations thereof and attempts to fix a notional “cap” on the percentage of a settlement amount. As a consequence, costs awards have been determined on an ad hoc basis leading to inconsistent results.
Justice Belobaba conducts a quick review of this sometimes tortured process and concludes that a single, simple, straightforward approach to contingency fee agreements should be adopted. … Continue Reading