Focus On

Civil Litigation - Class actions - Certification - Procedure - Pleadings - Striking out pleadings - Grounds - Lack of jurisdiction - Appeals - Quashing or dismissal of - Abuse of process

Thursday, December 22, 2016 @ 7:00 PM  


Application by the respondent, Anstead, for an order striking the appeal by the Saskatchewan Medical Association. The appellant appealed a chambers judgment dismissing its application to strike a class action claim by the respondent on jurisdictional grounds and granting the respondent certification. The appellant was the exclusive bargaining representative for Saskatchewan physicians and negotiated the payment schedule for all surgical assistants. The respondent was a physician who represented a class of surgical assistants who did not operate from a general medical practice office. The respondent alleged that class members received lower fees than office-based surgical assistants for provision of the same services. The respondent alleged the appellant breached its common law fiduciary duties and obligations of fairness and fair representation in negotiating the fees for the members of the class. The chambers judge certified the respondent’s action as a class proceeding and refused the appellant’s request to dismiss the action on jurisdictional grounds. The appellant applied for leave to appeal the certification decision and filed a separate appeal of the refusal of its jurisdictional challenge. The Court denied leave to appeal the certification decision. The respondent now moved to strike the appellant’s appeal of the refusal of the jurisdictional challenge.

HELD: Application allowed. The certification decision and the jurisdictional ruling were of one piece, based on substantially similar and closely connected submissions. The essence of the appellant’s argument challenging the existence of an authentic cause of action for certification purposes was that the court lacked subject matter jurisdiction. The appellant’s application for leave to appeal the certification decision substantially repeated the same arguments unsuccessfully. The abuse of process doctrine precluded re-litigation of the issue. Similarly, the appeal was a collateral attack on the certification decision. To find otherwise would impermissibly fragment the litigation at the Court of Appeal level in a matter that promoted judicial inefficiencies and raised the potential of inconsistent rulings. The appeal was accordingly struck.