Britton v Ford Motor Company of Canada, 2021 ABQB 17

Court of Queen’s Bench of Alberta Citation: Britton v Ford Motor Company of Canada, 2021 ABQB 17 Date: 20210107 Docket: 1901 03817 Registry: Calgary Between: Robert Britton Plaintiff - and - Ford Motor Company of Canada Ltd and Ford Motor Company Defendants _______________________________________________________ Endorsement of the Honourable Mr. Justice J.T. Eamon _______________________________________________________ [ 1 ] The Defendants seek to stay this proposed class action.

The Plaintiff, who is represented by Merchant Law Group (MLG) opposes the application, and seeks to certify the action as a class action.

In Britton v Ford Motor Company of Canada , 2020 ABQB 344 , I directed the Defendants could apply for a stay before the certification application was heard. [ 2 ] The basis of the Defendants’ application is that MLG commenced a substantially identical action in the Court of Queen’s Bench for Saskatchewan, on July 17, 2012 (as amended June 11, 2015) in Wittal v Ford Motor Company of Canada, Limited and Ford Motor Company , QBG 1230/2012 (SKQB). [ 3 ] The Saskatchewan action (in its amended form) and the Alberta action are substantially identical.

Each Plaintiff alleges in their respective action that the Defendants designed, manufactured or distributed certain vehicles with engines that had improperly designed spark plugs and related engine defects, which caused vehicle owners and lessees to suffer losses. [ 4 ] Each Plaintiff seeks certification as a national class action. In Alberta, the action is proposed on behalf of “all persons resident in Alberta and throughout Canada, each of whom purchased or leased one or more of the Subject Vehicles” listed in the Defendants’ Technical Service Bulletin 08-7-6.

In the Saskatchewan action, the proposed class is all persons who purchased or leased such vehicles in Canada.

[ 5 ] MLG commenced the Saskatchewan action, on behalf of two individuals (one named, and the other a “John Doe” claimant) in 2012. MLG substituted Mr Wittal as the Plaintiff (and made other amendments) in 2015. Apart from that development, there were no formal steps taken in the action until 2018 [1] . [ 6 ] MLG filed a notice of application for certification of the action as a class action in June 2018 and began communicating with the Court of Queen’s Bench for Saskatchewan to seek certification. MLG prepared affidavits in support of its application. [ 7 ] Mr Briton is an Alberta resident.

He owns a Ford vehicle containing one of the subject engines and suffered loss from the alleged defect. If a class action does not proceed, he will be unable to pursue an individual claim given the cost associated with pursuing a complex law suit. [ 8 ] Mr Briton commenced the Alberta action on March 14, 2019 because of delays he claims Mr Wittal encountered in having the Court hear applications in the Saskatchewan action. He deposed: 7.

I am advised by lawyers in MLG that they are unable to get the Court in Saskatchewan to do anything at all regarding the claim being advanced by Kevin Whittal [sic] and that MLG does not intend to pursue the case on behalf of Kevin Whittal [sic]. 9. I want to proceed with the within proposed class action against Ford in relation to the spark plug issue. I want to proceed in Alberta because nothing can proceed elsewhere. Albertans and Canadians are being denied the opportunity to access to justice if I am unable to proceed in Alberta. 11.

I should not have to wait on a proposed class action in Saskatchewan where the assigned judge in Saskatchewan seems unprepared to take the case forward at any time much less in a timely manner. 12. The Saskatchewan action might go forward at some time in the future but neither I nor other Albertans, nor other Canadians should have to wait in circumstances where I have filed a complete certification record and my counsel and I are willing and able to proceed in a certification hearing in Alberta immediately. 13.

I believe I am entitled to access justice in the Courts where I reside regardless of what is happening, or in this case not happening, in the courts in some other province. [ 9 ] Mr Briton agreed to commence an action in Alberta because MLG told him the Saskatchewan action would not be proceeding.

In contrast, Mr Wittal heard for the first time that MLG did not intend to proceed with the Saskatchewan action during his July, 2020 cross-examination on affidavit in the Alberta action. [ 10 ] Notwithstanding what Mr Briton may have heard or was told, MLG continued its efforts to pursue the Saskatchewan action after the Alberta action was filed. On May 11, 2020 the Chief Justice of the Court of Queen’s Bench for Saskatchewan issued directions that appointed a new case management judge and directed the Registrar to convene a conference call with the case management judge and counsel.

Counsel advised during the hearing of the present application that a case management meeting and certification application in the Saskatchewan action have not been scheduled. [ 11 ] Mr Briton participated in the Saskatchewan action by providing affidavits in support of the certification application there.

Mr Wittal participated in the Alberta action by providing an affidavit in support of the certification application here. [ 12 ] There is no evidence that anyone is competing with Mr Briton and Mr Wittal, both represented by MLG, to pursue or certify any similar action in Alberta, Saskatchewan, or elsewhere in Canada. [ 13 ] The Defendants submit that the Alberta action is an abuse of process because the actions advance parallel claims in different provinces against the same defendants, in relation to the same dispute, and seeking similar relief, in circumstances where the duplicative claims do not serve a legitimate purpose. [ 14 ] The Defendants recognize that “if a multi-jurisdictional class proceeding or a proposed multi-jurisdictional class proceeding has been commenced elsewhere in Canada that involves subject-matter that is the same as or similar to that of a proceeding being considered for certification ..., the Court must determine whether it would be preferable for some or all of the claims or common issues raised by the prospective class members to be resolved in the proceeding commenced elsewhere” ( Class Proceedings Act , SA 2013, c C- 16.5, s 5(6)). [ 15 ] However, they do not seek at this stage to address their stay application concurrently with the pending certification application.

Their present application is founded on one of the traditional heads of abuse of process: multiple or successive proceedings which serve no useful purpose [2] . [ 16 ] The Plaintiff concedes that while there are two separate but identical putative class actions in Saskatchewan and Alberta commenced by the same law firm, parallel proceedings are not an abuse of process [3] . [ 17 ] The Court may consider a stay application, in the context of a certification application and before hearing the merits of the certification application, where “the case management judge has a sufficient understanding of the nature and particulars of the proposed class proceeding” ( Ravvin v Canada Bread Company , Limited , 2020 ABCA 424 [4] at para 50).

A judge would also consider whether the application is likely to dispose of the action or would more efficiently address the objectives of class proceedings ( Ravvin at para 51). [ 18 ] Both sides cited extensive case law in support of their respective position.

The Courts often acknowledge there are sometimes good reasons for multi-jurisdictional proceedings (see, for example, Ammazzini v Anglo American PLC , 2016 SKCA 164 at para 64-65 ; Wilson v DePuy International Ltd , 2019 BCCA 440 at para 53 ; Winder v Marriott International Inc , 2019 ONSC 5766 at para 60 ), and there are many examples of competing national class proceedings. Multi-jurisdictional class actions are not inherently or presumptively abusive ( Hafichuk-Walkin at paras 40-43 ).

[ 19 ] Nevertheless, duplicative national class proceedings that do not serve a legitimate purpose ought to be avoided because they often undermine the three objectives of class proceedings legislation: judicial economy, access to justice, and behaviour modification. In Winder , Perell J explained why multiple proceedings undermine these objectives: [57] The phenomena of multiple overlapping class actions, as exists in the case at bar, present problems for the courts across the country.

The disadvantages of multiple proceedings about the same wrong are inefficiency, the duplication of creating an evidentiary record, the duplication of fact-finding, the duplication of legal analysis, the duplication of appeals, the embarrassment of inconsistent outcomes, the wasted forensic resources of lawyers and experts, and wasted judicial resources. [58] Further, multiple class actions raise the adverse prospect of the corruption of settlements and of extra-territorial judgment enforcement proceedings because for example, where there is more than one rival national class action, the defendant has an opportunity to shop around for a bargain settlement causing difficulties for courts across the country about whether to approve the settlement or to facilitate the enforcement of a judgment reached in another jurisdiction. [59] Avoiding a multiplicity of class actions about a single wrongdoing is particularly important to Class Counsel because the viability of an entrepreneurial class action is highly dependent on class size.

Class proceedings increase access to justice by spreading litigation costs while increasing litigation rewards for Class Counsel across a large group. If that group is diluted by a rival regional, national, or global class action, then Class Counsel may forgo taking on the risk of prosecuting the group’s claim. [60] However, before moving on in the discussion to consider whether there are any solutions to the problems of a multiplicity of class actions, it is important to disabuse any idea that a multiplicity of class actions is always a problem.

Sometimes, more than one class action about the same wrongdoing is unobjectionable and even advantageous. [ 20 ] The main difficulty in managing these types of actions arises from the lack of a national, coordinated approach to class action management. In Ravvin , the Alberta Court of Appeal commented on the persistent uncertainty and lack of coordination in managing competing national litigation, as follows: [34] ... [T]here remains no pan-Canadian procedure to address the situation of overlapping class proceedings in several provinces.

As a result, the parties (or more likely, their lawyers) are left with a patchwork of legislation across the country, some of it consistent, some not. In response to the lack of coordination, law firms appear to be filing actions in numerous provinces to “guard jurisdiction” and then using interlocutory procedures such as carriage applications and competing stay applications brought on the basis of abuse of process and/or provisions similar to s. 5(6) of the Alberta [ Class Proceedings Act ] to address the proliferation of parallel actions they in fact caused.

These multiple overlapping class proceedings continue to impose unnecessary costs and burdens on courts across the country: Winder at paras 57-62. [35] In our view, this history demonstrates that we are still in the evolution of a culture shift and there remains a need to move towards implementing practical mechanisms to consistently address overlapping and duplicative class proceedings in multiple provinces. [5] [ 21 ] MLG mainly asserts unqualified rights of Mr Briton, an Alberta resident, to access the Alberta Courts and a right to conduct parallel proceedings.

However, the right of access to the Courts does not license abusive proceedings. I think the law has evolved well beyond an unqualified right to conduct parallel proceedings, if there ever was such a right. See Ravvin (QB) at para 42. [ 22 ] The Defendants’ submissions acknowledge that parallel proceedings are not abusive per se, but have essentially left MLG to justify the proceeding. That reverses the onus. [ 23 ] MLG advances two justifications. [ 24 ] First, MLG and Mr Briton are dis-satisfied with the progress in the Saskatchewan action.

Whatever their perceived issues over scheduling in Saskatchewan [6] , I do not see an objection to a litigant seeking perceived advantages by suing in another place that has jurisdiction. There may be any number of reasons why a litigant prefers one jurisdiction over another, including cost, effort or access preferences. [ 25 ] However, that does not answer the Defendants’ concerns. This is not a case of competing claimants in different jurisdictions. MLG are conducting both actions and the Plaintiffs in both actions are cooperating with each other.

MLG obviously has significant influence in deciding where and how both claims will proceed. Multiple proceedings by the same party should be discouraged. The same applies to the claimants in the present case. MLG have not discontinued the Saskatchewan action notwithstanding that the action has been pending in Alberta for almost two years. Mr Briton’s affidavit acknowledges that the Saskatchewan action might proceed in future. MLG cannot leave open the question whether it will or won’t discontinue the Saskatchewan action indefinitely. [ 26 ] MLG’s second justification is to preserve limitation periods.

The parties did not spend much time in their submissions, written or oral, addressing this point. MLG submits the suspension of limitation periods under

section 40 of the Class Proceedings Act might not protect class members who were unaware of the Saskatchewan class action ( Jackson v Canadian National Railway , 2012 ABQB 652 at para 130 , aff’d on other grounds, 2013 ABCA 440 ). [ 27 ] I gave the Defendants leave to apply before certification to make their arguments, but the onus was and is on them to show absence of legitimate purpose.

They have not met this onus. [ 28 ] The fact other actions are not close to certification may justify Alberta residents seeking to access the Alberta Courts ( Yee v Aurelian Resources Inc , 2007 ABQB 368 at para 17 ). “Where a parallel class action in another jurisdiction has not yet been certified, courts have been slow to stay the class proceeding before them...”( Kohler v Apotex Inc , 2015 ABQB 610 at para 43 ; see also Gomel at para 68 ). In Ravvin Rooke ACJ stayed Alberta actions in favour of an Ontario action.

Though the Ontario action had not yet been certified, a carriage dispute had been determined and the action was well on its way to certification.

[ 29 ] At this point, there is no assurance MLG will continue to pursue the Saskatchewan action. At best, MLG has given mixed signals. The Defendants have not addressed whether MLG is legally or ethically obliged to continue pursuing the Saskatchewan action. If MLG were able to or did drop the Saskatchewan action, Alberta residents’ claims might be prejudiced by the passage of time under the Limitations Act .

Where limitations laws are concerned, sometimes commencing an action late is better than never. [ 30 ] In this case, it is best to consider all the issues arising from the multiple proposed national class actions in the context of sub-s 5(6) - (8) of the Class Proceedings Act . That can be done at the upcoming certification application. I decline to stay the action before that hearing. [ 31 ] MLG should not take this as an invitation to pursue their action in Alberta, blind to the action in Saskatchewan.

MLG has to adequately address the concerns of duplication of effort, inconsistent decisions, and uncertainty under sub-s 5(6) - (8) of the Class Proceedings Act . [ 32 ] I remain able to stay this action, or limit its scope, after the parties have addressed all the factors under those provisions. The question of preferable procedure or certification might be affected by the following: (

a) If for limitations or other reasons, this action would become unduly complex or otherwise problematic in comparison to the Saskatchewan action. (

b) If the prospect of duplication of effort continues without some proper plan to address it. [ 33 ] For the purposes of the upcoming certification application, I wish to raise some possible matters related to these points for the parties to address in the event they have not done so in their as yet unfiled certification briefs: (1) limitations issues; (2) coordinating with Saskatchewan. [ 34 ] The Alberta action, commenced in 2019, might raise limitations issues that are not present in the Saskatchewan action, commenced almost 7 years earlier under a somewhat more generous limitations regime [7] . Does this raise issues under

section 5 of the Class Proceedings Act ? [ 35 ] Alberta limitations law must be applied in Alberta actions no matter where the events occurred ( Limitations Act , RSA 2000, c L-12 , s 12(1)). Saskatchewan has a similar provision ( The Limitations Act , SS 2004, c L-16.1 , s 27). [ 36 ] The vehicles in question all had engines manufactured in 2007 or earlier [8] . The vehicle years ranged from 2004 through 2008 [9] .

The named Alberta Plaintiff had his vehicle repaired well over two years before he started participating in the Saskatchewan action and appears to have known of the defect that caused his loss more than two years before filing in Alberta. MLG filed the Alberta action about 12 years after the last build date of the engines and perhaps many years after the vehicles were distributed into the market. [ 37 ] Is it preferable procedure to certify the action in Alberta instead of Saskatchewan if the delay in filing in Alberta has created limitations issues that do not exist in Saskatchewan?

Would an Alberta certification result in uncertainty and inevitable fracturing of the class by creating numerous sub-classes based on the possible expiration of limitations? How will that be explained, if at all, to class members who have the right to opt out of Alberta? Will the Defendants plead limitations [10] ? [ 38 ] On the second point, I am presently being asked to try to organize this action without involving the Court in Saskatchewan.

The parties may well wish to address Practice Note 6, “Class Action Judicial Protocol (2018), para 7 – ie, this Alberta case management judge reaching out to the case management judge appointed in Saskatchewan or perhaps seeking to convene a joint discussion. In any event, at the hearing I will be asking MLG for a substantive proposal to address its parallel action. [ 39 ] The costs of this application can be addressed with the costs of the pending certification application. Heard on the 12 th day of November, 2020. Dated at the City of Calgary, Alberta this 7 th day of January, 2021. J.T. Eamon J.C.Q.B.A.

Appearances: EF Anthony Merchant QC and A Tibbs for the Plaintiff

M A Kirk and H DesBrisay for the Defendants