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Federal Court - Stays. Canada v. Hudson
In Canada v. Hudson (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) Crown appeals of stays issued [under Federal Court Act s.50(1)(b) - 'Stay of proceedings authorized'] against two RCMP-related uncertified class actions (Hudson and Pierrot), here on the basis that they were duplicative of pre-existing (and certified) class actions (Greenwood and AMPMQ).
In these quotes the court canvasses the FCA s.50 'stay' provision, here while assessing whether stays are merited in the context of similar class action proceedings:[31] The central issue is whether the motion judge, in exercising the discretion under paragraph 50(1)(b) of the Federal Courts Act and refusing to stay Hudson and Pierrot, committed an error warranting this Court’s intervention.
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(1) Legislation: paragraph 50(1)(b) of the Federal Courts Act
[33] Part 5.1 of the Rules does not specifically provide for stays of class proceedings (whether proposed or certified, multi-jurisdictional or in the same jurisdiction). The motion judge’s decision was rendered pursuant to paragraph 50(1)(b) of the Federal Courts Act, which applies to all proceedings. It provides:50 (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter
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(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
50 (1) La Cour d’appel fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre les procédures dans toute affaire :
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(b) lorsque, pour quelque autre raison, l’intérêt de la justice l’exige. [34] Support for the application of paragraph 50(1)(b) to a stay of class proceedings is found in LaLiberte where, in the context of a carriage motion, the Federal Court ordered the stay of proposed class proceedings under the authority of section 50 of the Federal Courts Act and paragraph 105(b) of the Rules: LaLiberte FC Decision at para. 85.
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[36] The appellant submits that a court must consider the goals of class proceedings in exercising the discretion under paragraph 50(1)(b) in the context of class proceedings. The goals of class proceedings are access to justice, judicial economy, and behaviour modification: Hollick v. Toronto (City), 2001 SCC 68 at para. 15 [Hollick]; L’Oratoire Saint-Joseph du Mont-Royal v. J.J., 2019 SCC 35 at para. 6.
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[39] A stay ordered under paragraph 50(1)(b) is a matter of broad discretion: Mylan Pharmaceuticals ULC v. AstraZeneca Canada, Inc., 2011 FCA 312 at para. 5 [Mylan]; Clayton v. Canada (Attorney General), 2018 FCA 1 at para. 24 [Clayton].
[40] In Mylan, this Court distinguished between situations where a court is asked to enjoin another body from exercising its jurisdiction and those where the court is asked not to exercise its own jurisdiction until later. For the former, the tripartite test established in RJR-Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 applies. For the latter, the “interest of justice” test governs: Mylan at para. 5; Clayton at para. 24. Here, as Hudson and Pierrot were commenced in the Federal Court, the “interest of justice” test applies.
[41] Under the “interest of justice” test, there is no exhaustive list of factors that must be considered. The relevant factors will be determined by the context in which the stay request arises: Mylan at para. 5; Coote v. Lawyers’ Professional Indemnity Company, 2013 FCA 143 at para. 10 [Coote]; Clayton at para. 26.
[42] This approach is consistent with decisions of other appellate courts concerning the stay of class proceedings. The exercise of discretion should not be curtailed by rigid criteria: Herold v. Wassermann, 2022 SKCA 103 at para. 98, citing Leier v. Shumiatcher (No. 2), 1962 CanLII 330 (S.K. C.A.) at para. 2, 39 W.W.R. (N.S.) 446; Hamm v. Canada (Attorney General), 2021 ABCA 329 at para. 11.
[43] While there are no “hard and fast rules” applicable to the “interest of justice” test (Richards v. Canada, 2021 FC 231 at para. 10), certain guiding principles are to be taken into account, including the overarching objective of securing the “just, most expeditious and least expensive determination of every proceeding on the merits”: Rules, rule 3. This reflects the public interest in proceedings moving in an efficient, timely, and fair manner, and avoiding the wasteful use of judicial resources: Mylan at para. 5; Coote at para. 13; Clayton at para. 28.
[44] Although a court need not apply the RJR-Macdonald test, it may take into account some of the same considerations: Clayton at paras. 26-28; Viterra Inc. v. Grain Workers’ Union (International Longshoreman’s Warehousemen’s Union, Local 333), 2021 FCA 41 at para. 23. Ultimately, the motion judge must protect against unfair prejudice to either party: Coote at para. 13. This necessarily involves a balancing of the prejudice to the moving party if the stay is not granted and prejudice to the opposing party if the action is stayed.
[45] I am satisfied that the motion judge took these principles into account. The motion judge acknowledged many of these authorities and cited others for guidance on the “interest of justice” test: Reasons at para. 10. The principles were applied with due consideration to Hudson and Pierrot being proposed class actions and Greenwood and AMPMQ already being certified.
[46] A presumption of prejudice arises where overlap of class proceedings in the same jurisdiction is established — sometimes referred to as “intra-jurisdictional multiplicity” of proceedings. There is no need to separately prove prejudice, although the presumption can be displaced with evidence to the contrary: Reid v. Google LLC, 2022 BCSC 158 at para. 140 [Google BCSC Decision], aff’d Kett v. Google LLC, 2023 BCCA 350 [Google BCCA Decision] (this point was not challenged on appeal).
[47] The motion judge correctly identified that the appellant’s submissions rested on its view that Hudson and Pierrot were duplicative of Greenwood and AMPMQ. Multiple proceedings, whether individual actions or class proceedings, that litigate the same issue are inefficient and expensive, cause delay in the administration of justice, and waste scarce judicial and other resources: Vaeth v. North American Palladium Ltd., 2016 ONSC 5015 at para. 37; Apotex Inc. v. Bayer Inc., 2020 FCA 86 at para. 45. They entail the possibility of inconsistent results and can be prejudicial to a defendant, forced to defend the same allegations on multiple fronts. The need to avoid a multiplicity of class proceedings must, however, always be balanced with the objective of access to justice: Jensen v. Samsung Electronics Co., Ltd., 2019 FC 373 at para. 22.
[48] The motion judge conducted a balancing exercise, reviewing the potential prejudice to each party. More particularly, the motion judge considered judicial economy, acknowledging that a stay could prevent unnecessary costly duplication of judicial and legal resources: Reasons at para. 13. The motion judge also took into account access to justice and potential prejudice to the plaintiffs, noting that a stay would potentially require Ms. Hudson to litigate her claims in a piecemeal fashion: Reasons at paras. 30-31. The motion judge considered the potential prejudice to the defendant in having to potentially defend the same allegations on different fronts: Reasons at para. 13. Contrary to the appellant’s submission, the motion judge did consider the class action goals of judicial economy and access to justice.
[49] This was appropriate in the circumstances. It is not for this Court to review the weight given to those class action goals or engage in a rebalancing of the factors considered by the motion judge.
[50] The motion judge made no error in identifying and considering the relevant principles governing the “interest of justice” test. . Canada (Attorney General) v. Ellisdon Corporation
In Canada (Attorney General) v. Ellisdon Corporation (Fed CA, 2023) the Federal Court of Appeal considered a Crown stay motion of their own JR, here of a CITT order:[9] Paragraph 50(1)(b) of the Federal Courts Act, R.S.C. 1985, c. F-7 confers a discretionary power on this Court to stay a proceeding before it where “it is in the interests of justice”. The exercise of this discretionary power is guided by certain principles, including securing “the just, most expeditious and least expensive determination of every proceeding on its merits”: Rule 3 of the Federal Courts Rules, SOR/98-106 (the Rules); Coote v. Lawyers’ Professional Indemnity Company, 2013 FCA 143 at para. 12. In this regard, it will take much to convince this Court to grant a stay where a long period of abeyance is requested or when the ensuing delay will cause harsh effects on a party: Mylan Pharmaceuticals ULC v. AstraZeneca Canada, Inc., 2011 FCA 312 at para. 5. . Hutton v. Sayat
In Hutton v. Sayat (Fed CA, 2023) the Federal Court of Appeal cites grounds for ordering a stay of proceedings:[6] Subsection 50(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, grants this Court and the Federal Court the authority to stay a proceeding when a claim is being proceeded with in another court, or where it is in the interest of justice that the procedure be stayed. As noted by Justice Fothergill, the interest of justice has been interpreted broadly, and is not limited to the interests of the party but rather includes a consideration of the integrity of the judicial process: Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391 at paras. 88-90; Pearson v. Canada, 1999 CanLII 8631 (FC) at paras. 20-23.
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