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

Thursday, August 31, 2017 @ 8:30 AM  

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Motion by the plaintiffs from an order staying their proposed class action in favour of another proposed class proceeding. The action concerned damages arising from the government policy in the 1960s to remove Aboriginal children from their families and place them with non-Aboriginal parents. In 2015, the appellants commenced their action against Manitoba and Canada seeking damages for breach of fiduciary duty, negligence and cultural genocide. In 2016 another action was commenced against the Attorney General of Canada as the only named defendant seeking damages for similar losses. At the carriage motion, the motion judge concluded that the 2016 action would best serve the interests of the putative class and the policy objectives of the Class Proceedings Act. He considered the differences in the proposed class definitions between the two actions, the causes of action and the defendants named in the two claims. The motion judge found that the prospects for certification of the 2016 action were greater than the 2015 action because of its narrower focus and because it was based on an action which had already been certified in Ontario.

HELD: Appeal dismissed. Even though certification of the 2016 claim, with the existing class definition, would result in the exclusion of individuals who fell within the class definition in the appellants’ action, they would not be deprived of access to justice, but would be required to advance individual claims.  The motion judge was cognizant of this issue and his weighing of this factor was entitled to deference. The motion judge was alive to the differences between the two actions regarding the defendants. The appellants had not demonstrated that the motion judge erred in this regard and his decision was entitled to deference. In finding that the proposed representative plaintiffs in both actions might be suitable representative plaintiffs in the proceeding and that there was nothing to indicate that the plaintiffs in the 2016 action would do anything other than fairly and adequately represent the interests of the proposed class, the motion judge was entitled to consider an affidavit from a lawyer from the law firm representing the plaintiffs in the 2016 action, in addition to the statement of claim.

Thompson v. Manitoba (Minister of Justice), [2017] M.J. No. 209, Manitoba Court of Appeal, B.M. Hamilton, W.J. Burnett and J. leMaistre JJ.A., July 21, 2017. Digest No. TLD-August282017009