In its decision in BCE Inc. v Gillis, 2015 NSCA 32, the Nova Scotia Court of Appeal considered whether a proposed class action filed in Nova Scotia constituted an abuse of process. In finding that it did, the Court took the opportunity to admonish plaintiffs’ counsel for filing nine largely identical statements of claim in nine different provinces.
The action began in 2004 when the plaintiffs sued the defendant mobile service providers in relation to wireless phone system access fees. In seeking to establish that abuse of process had occurred, the defendants pointed to correspondence from 2006 between plaintiffs’ counsel and the Nova Scotia court. In that correspondence, plaintiffs’ counsel advised that it did not intend to pursue the matter in Nova Scotia and intended instead to seek a national class action from the Saskatchewan court. A national class action was subsequently certified in Saskatchewan in 2007.
In 2014, ten years after filing the statement of claim, plaintiffs’ counsel decided to pursue the actions in Nova Scotia. The Court stated:
“I equate this to planting legal cherry trees across the country. For ten years the only tree they cared for was in Saskatchewan. Now they want to go from jurisdiction to jurisdiction picking only the cherries they like in jurisdictions they have totally neglected for a decade. With this selective harvesting the appellants are left to guess at where the respondents and [plaintiffs’ counsel] may choose to go next. If they are permitted to do what they ask, the appellants will have no choice but to relitigate the same issues, repeatedly, potentially having divergent outcomes.”
The plaintiffs argued that multi-jurisdictional proceedings are common in a class-action context. The Court did not take issue with the fact of multiple proceedings across multiple jurisdictions per se; the criticism stemmed from the fact that all of the proceedings involved the same plaintiffs, the same defendants and the same issues. While the Court considered a variety of factors to determine that the Nova Scotia action was an abuse of process, perhaps most importantly, the Court concluded that there must be an intention to pursue the action in the jurisdiction in which it was filed.
Key Take-Away Principle
This case stands for the principle that plaintiffs’ counsel may commence multiple actions but once commenced, counsel cannot simply sit back, do nothing, and merely “park” the action while waiting to see which of the jurisdictions will result in a preferred outcome. The inordinate delay in this particular case was one of the key factors that led the Court to conclude that plaintiffs’ counsel’s actions constituted an abuse of process.
The Court of Appeal concluded that the action against the defendants in Nova Scotia should be permanently and unconditionally stayed.