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CIVIL PROCEDURE - Parties - Class or representative actions - Procedure - Stay of action due to parallel proceeding

Friday, February 03, 2017 @ 2:14 PM  

Appeal by the representative plaintiffs in a proposed multi-jurisdictional class action from an order conditionally staying their action. The appellants commenced a multi-jurisdictional action in Saskatchewan alleging that the defendants artificially increased the price of diamonds by unlawfully restricting global supply. They sought to certify a claim on behalf of Canadian residents in all provinces, except British Columbia, who paid inflated prices for diamonds. Similar class actions were launched in other provinces, including Ontario. The respondent was the representative plaintiff for the Ontario action, which was commenced on behalf of residents of all provinces except British Columbia. The respondent applied for a conditional stay of the appellants' action pending a certification decision in the Ontario proceeding. The certification judge determined that the right of a representative plaintiff to make submissions pursuant to s. 5.1 of the Class Actions Act included the right to file evidence and apply for a stay. The judge concluded that Ontario was the appropriate venue for the multi-jurisdictional class action. The appellants' action was stayed pending determination of the certification application in the respondent's action. The appellants appealed. Thereafter, the Ontario action was certified for settlement purposes.

HELD: Appeal dismissed. The appeal was not moot, as the respondent's standing to seek a continuation of the stay following certification of his Ontario action remained a live issue. The certification judge erred in finding that the respondent had standing to apply for a stay of the appellants' action pursuant to s. 5.1 of the Class Actions Act, as that provision entitled the respondent to do nothing more than make submissions. However, under s. 6(2) of the Act, the certification judge had an independent obligation to consider whether it was preferable that the matters raised in the appellants’ proceeding be resolved in one of the multi-jurisdictional class actions ongoing in other provinces. In the course of the s. 6(2) analysis, the judge was required to consider the same matters pertinent to the issue of whether to grant the stay requested by the respondent. The judge's decision to entertain the respondent's stay request had no effect on the nature of the decision. The judge would have reached the same result had the respondent's application not been entertained. In granting a stay of the appellants' action, the judge did not err by employing a "first to file" approach to the issue, improperly apply the relevant test, or rely on improper factors related to counsel's investment in the other actions. The stay decision did not reflect improper deference to Ontario by denying Saskatchewan residents access to justice, as these were multi-jurisdictional proceedings.

Ammazzini v. Anglo American PLC, [2016] S.J. No. 708, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R.K. Ottenbreit and N.W. Caldwell JJ.A., December 22, 2016. Digest No. 3636-003