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Stays - Conflicting Proceedings [R21.01(3)(c)]

. 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)] 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).

Here the court considers whether related proceedings were duplicative:
(4) Did the motion judge err in characterizing the claims and conducting the duplication analysis?

[51] Having identified the test for granting a stay, the motion judge proceeded to consider the key issue — whether the proceedings were duplicative.

[52] The essence of the appellant’s submissions was that the factual foundation and the issues in Hudson and Pierrot are duplicative of those in Greenwood and AMPMQ: Reasons at para. 13. The motion judge analyzed the degree of overlap between the proceedings, relying on the record, including the pleadings in all of the proceedings and the certification orders and decisions in Greenwood and AMPMQ.

[53] The appellant and the interveners submit that the motion judge committed several errors in the duplication analysis, in the legal and factual characterization of the claims. For the reasons that follow, I disagree.

[54] I pause to briefly address the challenges that underlie the duplication analysis. There are no indications in the Federal Courts Act or Rules of criteria to be considered in determining the overlap in class proceedings (whether proposed or certified, multi-jurisdictional or in the same jurisdiction). By contrast, section 1.1 of the Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6 [OCPA] provides:
1.1 A determination under this Act as to whether two or more proceedings involve the same or similar subject matter shall include consideration of whether the proceedings involve the same or similar causes of action and the same or affiliated defendants.

1.1 Toute décision rendue en vertu de la présente loi sur la question de savoir si deux instances ou plus concernent le même objet ou un objet similaire tient compte de la question de savoir si les instances concernent les mêmes causes d’action ou des causes d’action similaires et les mêmes défendeurs ou des défendeurs associés.
[55] Here, the issue is the potential overlap between two proposed class proceedings (Hudson and Pierrot) and two already certified class proceedings (Greenwood and AMPMQ). Although AMPMQ is a Quebec proceeding, the issue of competing class proceedings in multiple jurisdictions, and the related issue of which claim or forum should be preferred, do not arise. Other considerations apply where a court is asked to stay one class proceeding in favour of a class proceeding in another Canadian jurisdiction: for example, OCPA, subsections 5(6) and (7); Class Proceedings Act, R.S.B.C. 1996, c. 50, subsections 4(3) and (4).

[56] A recent decision of the British Columbia Court of Appeal addressed a situation, analogous to this case, in which multiple claims against the same defendant making similar allegations were commenced in the same jurisdiction. The Court confirmed the correct test to be whether the proceedings are about “the same dispute or subject matter”: Google BCCA Decision at para. 61. This approach centres on the overlap in the legal issues / causes of action and damages claimed, and the factual foundations of the proceedings (e.g., whether the claims involve the same or similar events or transactions). Put differently, do the proceedings “traverse the same factual ground, allege the same wrongdoing and claim for the same loss”?: Google BCSC Decision at para. 156.

[57] The motion judge’s approach was consistent with this guidance — relying on the “focus” of each proceeding to capture both the relevant legal issues / causes of action and the facts supporting the claims.

[58] Additional factors to consider in the duplication analysis may include whether the proceedings have some or all of the same class members, class periods, and the same (or affiliated) defendants. Here, the defendants are the same. The motion judge determined that the proceedings were sufficiently different without considering the potential for overlap in class membership or class periods. The motion judge concluded that these class issues should be left for the certification judge: Reasons at para. 28.

[59] The critical part of the duplication assessment lies in determining how much overlap can be tolerated in allowing multiple actions to proceed, keeping in mind other procedural tools to coordinate the prosecution of claims. A Venn diagram depicting shaded areas of intersection springs to mind.

[60] One can readily accept the proposition that “[t]here cannot be two or more certified class actions in the same jurisdiction representing the same class in relation to the same claim”: Mancinelli v. Barrick Gold Corporation, 2016 ONCA 571 at para. 11; Workman Optometry et al. v. Aviva Insurance et al., 2021 ONSC 142 at para. 33. However, it will rarely be this straightforward.

[61] The analysis will invariably be highly case-specific, involving a characterization of pleadings and factual determinations. Determining the essential nature of claims is a question of mixed fact and law, reviewable on the highly deferential standard of palpable and overriding error, absent an extricable error of law: Apotex Inc. v. Canada (Health), 2012 FCA 322 at para. 9, citing Housen; Buffalo v. Canada, 2016 FCA 223 at para. 42; Canada (Attorney General) v. Scow, 2022 BCCA 275 at para. 76 [Scow]. A motion judge is to be afforded a wide berth in the duplication analysis, given the context-specific nature of the inquiry.


(5) Conclusion

[87] There are potential areas of intersection between the proceedings — for example, between the claims in Hudson / Pierrot and Greenwood, for certain class members and periods, in the area of harassment based on race, and between Hudson / Pierrot and AMPMQ, in the area of harassment and discrimination based on race towards individuals with a connection to Quebec.

[88] The motion judge recognized that the claims in Hudson / Pierrot and those in Greenwood / AMPMQ were not completely distinct: Reasons at paras. 16 and 30-31. However, the motion judge concluded that the areas of overlap did not outweigh the differences and declined to exercise the discretion to permanently stay Hudson and Pierrot. I see no error in that decision.

[89] Greenwood and AMPMQ have been certified, but Hudson and Pierrot have not. The identifiable class and common questions remain to be determined in the latter proceedings. The motion judge made a discretionary decision in this context and, appropriately, exercised caution.

[90] The motion judge observed that some of the duplication arguments made by the appellant were better left to the certification judge: Reasons at para. 28. At a certification hearing for Hudson, the Court will be required to address the concerns raised by the appellant in these appeals, including whether Hudson would involve claims that are the subject of any other proceeding: Rules, subsection 334.16(2).

[91] In the context of a certification hearing, with additional information about the identifiable class(es), representative plaintiffs and common questions, the Court will be in a better position to assess the degree of overlap in the proceedings. At that time, the Court could consider whether a stay is warranted, if sought by the appellant, and other procedural tools available to limit potentially adverse consequences arising from the overlap.

[92] As acknowledged at the hearing, there may be alternatives less draconian than a stay, including case management, that preserve a role for all of the plaintiffs, allowing the actions to advance without duplication. The Hudson claim already explicitly excludes any claims class members have in Greenwood (unless Greenwood is decertified) and in Delisle (AMPMQ) (unless Delisle (AMPMQ) is de-authorized), addressing the intersection of the Hudson claims with each of the Greenwood and AMPMQ claims. At or prior to a certification hearing in Hudson, these alternatives could be further pursued.
. 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.


(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


(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 :


(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.


[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.


[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.
. Unoh v. Agboola

In Unoh v. Agboola (Div Court, 2023) the Divisional Court considered a stay, here in family law proceedings:
Guiding Principles – Order to Stay

[38] Rule 2 specifies that the primary objective of the Rules is to enable the court to deal with cases justly. In dealing with a case justly, the court is required to:
a. Ensure that the procedure is fair to all parties;

b. Save time and expense;

c. Deal with a case in ways that are appropriate to its importance and complexity; and

d. Give appropriate court resources to the case while taking account of the need to give resources to other cases.
[39] The Rules must be applied in a way that promotes the primary objective which involves active case management by the court. Parties and their lawyers are required to assist the court in promoting the primary objective.

[40] Section 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended (the “CJA”), allows a court to stay a proceeding on such terms as are considered just. The court’s mandate under rule 2(5) to take active management of cases will occasionally require consideration of the courts power to stay proceedings under section 106 of the CJA.
. 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.
. Kilian v. CPSO

In Kilian v. CPSO (Div Court, 2023) the Divisional Court considers the criteria for a stay, here where it's in response to a competing proceeding:
[48] Counsel for Dr. Kilian is correct in his observation that the granting of a stay is a discretionary remedy. However, judicial discretion has its limits. The test for granting an interim stay of one proceeding until another is resolved is set out in numerous cases, including the recent decision of Crosslinx v. Ontario Infrastructure 2021 ONSC 3567 at paras. 37-38:
a) Whether there is substantial overlap of issues in the two proceedings;

b) Whether the two cases share the same factual background;

c) Whether issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources; and

d) Whether the temporary stay will result in an injustice to the party resisting the stay.
. Birdseye Security Inc. v. Milosevic

In Birdseye Security Inc. v. Milosevic (Ont CA, 2020) the Court of Appeal considered when a stay could issue in an action because otherwise it would prejudice another action:
[14] A defendant may move for an order staying or dismissing an action (in this case a counterclaim) under r. 21.01(3)(c) where “another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter”. Having concluded that the duplicative counterclaim justified a stay, the motion judge ought to have stayed, and not “struck” the counterclaim. No issue was made of this, and nothing turns on it for the purpose of the appeal. Rather, the issue is whether there was a reversible error in the application of r. 21.01(3)(c) to bring to an end the counterclaim in Action 4669.

[15] The determination of whether a stay of proceedings should be granted because another proceeding is pending between the same parties involves an exercise of discretion, taking into consideration the circumstances of the particular case. The moving party must demonstrate that the continuation of the action would cause it substantial prejudice or injustice (beyond inconvenience and expense) because it would be oppressive or vexatious or would otherwise be an abuse of the process of the court, and that the stay would not cause an injustice to the responding party: Farris v. Staubach Ontario Inc. (2004), 2004 CanLII 11325 (ON SC), 32 C.C.E.L. (3d) 265 (Ont. S.C.), at para. 15. Factors relevant to prejudice include: the likelihood and effect of the two matters proceeding in tandem, the possibility and effect of different results, the potential for double recovery, and the effect of possible delay: Farris, at para. 16.

[16] The fact that another proceeding is pending between the same parties in respect of the same subject matter does not automatically lead to an order dismissing or staying the claim. Rather, the order is discretionary and the judge hearing the motion must be satisfied that the stay or dismissal is warranted in the particular circumstances of the case. While a multiplicity of proceedings may constitute an abuse of process which warrants an order staying or dismissing a proceeding (see e.g., Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125, 274 O.A.C. 229, at paras. 36, 46), that is not necessarily always the case. All of the circumstances must be considered to determine whether, in the interests of justice, a stay or dismissal should be granted.

[17] In this case, the motion judge stayed the counterclaim “to avoid an unjust multiplicity of proceedings”. He concluded that the duplicative litigation would “on the facts of this case” constitute an abuse of process, and he rejected Mr. Milosevic’s claim of prejudice on the basis that he would be able to pursue his counterclaim in Action 1527 regardless of whether Birdseye discontinued the main action in that proceeding.

[18] An order dismissing or staying a proceeding under r. 21.01(3)(c) is a discretionary order that is subject to deference on appeal, absent an error in principle: 1420041 Ontario Inc. v. 1 King West Inc., 2010 ONSC 6671, 1 R.P.R. (5th) 33 (Div. Ct.), at para. 24, rev’d on other grounds 2012 ONCA 249, 349 D.L.R. (4th) 97, leave to appeal refused, [2012] S.C.C.A. No. 272; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 87.


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Last modified: 22-02-24
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