As a result of Canada’s federal system, it is common for a defendant to face multiple class proceedings filed in various provinces in respect of a public incident. These proceedings often allege identical violations and seek similar remedies against the same defendants in numerous jurisdictions, and sometimes assert overlapping classes. In the past, courts had been reluctant to stay in their own province in the face of parallel proceedings in other provinces, out of concern of delaying or prejudicing the claims of their own residents. But in a number of recent decisions in Quebec, the Quebec courts have indicated that subject to the right terms and undertakings, they may be prepared to stay a class action in Quebec that is limited to Québec residents pending the outcome of certification of a national class in another province.
Rights and interests of Québec residents
On January 1, 2016, a new Code of Civil Procedure (“CCP”) came into force in Québec. It incorporates Article 577 CCP which provides that when a court considers a motion to stay a pending action, it “is required to have regard for the protection of the rights and interests of Québec residents”. It must be read in conjunction with Article 18 CCP, reiterating the guiding principle of proportionality.
Recent decisions have provided a well-awaited interpretation to the “protection of the rights and interests of Québec residents” set forth in Article 577 CCP. Although Article 577 CCP had been applied previously in Conseil pour la protection des malades v. Biomet Canada Inc. a class action regarding a product liability claim relating to a hip implant, it is only more recently that the Courts have provided guidance as to its interpretation.
Stay of parallel class proceedings
In Boehmer v. Bard Canada Inc., Justice Pierre-C. Gagnon, J.S.C. considered a request to stay a Québec class action, one of three class proceedings regarding a product liability claim relating to a cardiovascular filter product. Parallel proceedings had also been brought in Ontario and in British Columbia, and the proposed class action in Ontario involved a national class. In the face of overlapping classes (the proposed class in Ontario sought to include Québec residents that were already covered by the Québec class action), Justice Gagnon was prepared to grant a stay. He held that the rights and interests of Québec residents would be protected when i) the rights and interests of Québec members would be similarly treated if adjudicated in the parallel jurisdiction; ii) Québec residents will benefit from judicial economy and both time and efforts of counsel will be limited to one jurisdiction; iii) Québec residents will not suffer any prejudice as the Québec proceedings are only stayed and not dismissed; iv) should the applicant seek to discontinue the Québec proceedings, Québec courts will have the authority to refuse said discontinuance, if warranted.
On November 11, 2016, in Saumur v. Avid Life Media Inc., Justice Danielle Turcotte, J.S.C. also accepted to stay a Québec class action until a final judgment is rendered on the certification of the class proceedings brought before the Ontario Superior Court. In this case, proceedings were brought before both the Québec and Ontario jurisdictions relating to the same cause of action and identical material facts, that is the disclosure the personal information of Ashley Madison accountholders.
Although Justice Turcotte did not expressly rely on Article 577 CCP, she did apply the above criteria and concluded that to suspend the class action was in the interest of justice and of the Québec members.
In the current Canadian class action landscape of parallel proceedings brought in various jurisdictions, it is expected that Article 577 CCP will bring well-awaited guidance to Québec courts to stay class actions in keeping with the principles of proportionality and judicial economy – and will provide a welcome relief to defendants who face pending and overlapping class actions in multiple provinces.