Dixon v. Stork Craft Manufacturing Inc., 2013 BCSC 1117

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dixon v. Stork Craft Manufacturing Inc., 2013 BCSC 1117 Date: 20130621 Docket: 11-4482 Registry: Victoria Between: Jane Dixon, Dana Miller, Loretta McFadzean and Lisa Elliot Respondents (Plaintiffs) And: Stork Craft Manufacturing Inc., Fisher-Price Inc., Sears Canada Inc., Wal-Mart Canada Corporation, and Toys “R” Us (Canada) Ltd, Toys “R” Us (Canada) Ltee. Applicants (Defendants) Before: The Honourable Mr. Justice G.R.J. Gaul Reasons for Judgment Counsel for Plaintiffs / Respondents: D. Williams A.

Sadaghianloo Counsel for Defendants / Applicants Stork Craft Manufacturing Inc., Sears Canada Inc., Wal-Mart Canada Corporation, and Toys “R” Us (Canada) Ltd., Toys “R” Us (Canada) Ltee.: A. Wilkinson, Q.C. P. Morrow Counsel for the Defendant, Fisher-Price Inc.: M. Brown Place and Date of Hearing: Victoria, B.C. February 1, 2012 Place and Date of Judgment: Victoria, B.C.

June 21, 2013 INTRODUCTION [ 1 ] This proposed class action litigation relates to the alleged negligent design, manufacture, distribution and sale of baby cribs in Canada. [ 2 ] The plaintiffs, represented by legal counsel with the Merchant Law Group (“MLG”), commenced their lawsuit on 4 November 2011. It comes subsequent to numerous other actions across Canada involving essentially the same defendants and allegations.

For simplicity and clarity, I will refer to this action as the “ Dixon Action ”. [ 3 ] The defendants, Stork Craft Manufacturing Inc. (“Stork Craft”), Sears Canada Inc. (“Sears”), Wal-Mart Canada Corporation (“Wal-Mart), and Toys “R” Us (Canada) Ltd., Toys “R” Us (Canada) Ltée. (“Toys “R” Us”), seek an order pursuant to Rule 9-5 of the Supreme Court Civil Rules staying the Dixon Action or in the alternative striking the plaintiffs’ claim on the basis that it is vexatious or an abuse of the court’s process. [ 4 ] The defendant Fisher-Price Inc. (“Fisher-Price”) supports the application and the relief sought by the other defendants.

Facts [ 5 ] The plaintiff Jane Dixon is a resident of Victoria, British Columbia. The plaintiff Dana Miller is a resident of Edmonton, Alberta. The plaintiff Loretta McFadzean is a resident of Regina, Saskatchewan and the plaintiff Lisa Elliot is a resident of Toronto, Ontario. [ 6 ] The defendant Stork Craft is a company incorporated in British Columbia. Stork Craft’s principle business is the design, manufacture and distribution of baby cribs. The remaining defendants are companies whose business includes the marketing and sale of

Stork Craft baby cribs. [ 7 ] On 24 November 2009, Stork Craft issued a nation-wide recall of certain baby cribs it had manufactured between 1993 and 2009 (the “Recall”). Each plaintiff in the Dixon Action claims to own a Stork Craft crib that is the subject of the Recall. [ 8 ] On the same day the Recall was issued, Mr.

Cedar Dodd, a resident of Victoria, British Columbia, represented by counsel with the MLG, launched a proposed class action lawsuit in the British Columbia Supreme Court against Stork Craft, Fisher-Price Canada Inc., Fisher-Price, Sears Holding Corporation, Sears, Wal-Mart Stores Inc., and Wal-Mart relating to the baby cribs in question (the “ Dodd Action ”).

The proceedings against Fisher-Price Canada Inc., Sears Holding Corporation, and Wal-Mart Stores Inc. have been discontinued. [ 9 ] Other proposed class action lawsuits were launched on 24 and 25 November 2009 by plaintiffs in the following other Canadian jurisdictions, all of whom are represented by counsel with the MLG:

a) Ontario : Duong, Singh and Woof v. Stork Craft Manufacturing Ltd. et al. , Ontario Superior Court of Justice, No. 09-4962, (the “ Ontario Action ”), filed 25 November 2009;

b) Quebec : Santella v. Stork Craft Manufacturing Ltd. et al., Québec Superior Court, action No. 500 06-000488-094, filed 25 November 2009 (the “ Québec Action ”);

c) Saskatchewan : Riel v. Stork Craft Manufacturing Ltd. et al. , Court of Queen’s Bench of Saskatchewan, action No. 1794, filed 25 November 2009 (the “ Saskatchewan Action ”);

d) Alberta : St. Pierre, Loubert, Kalcounis and McLaughlan v. Stork Craft Manufacturing Ltd. et al. , Court of Queen’s Bench of Alberta, filed 24 November 2009 (the “ Alberta Action ”);

e) Manitoba : Russell v. Stork Craft Manufacturing Ltd. et al. , Court of Queen’s Bench of Manitoba, No. C10901-63980, filed 25 November 2009 (the “ Manitoba Action ”). [ 10 ] Stork Craft, as the lead defendant in all of the above-noted lawsuits, is represented by counsel with the law firm of McCarthy Tétrault. [ 11 ] Counsel for the parties in the Dodd Action appeared before me, as the assigned case management judge, on 30 September 2010.

During the course of that hearing, counsel for the plaintiff informed the court that the plaintiffs in the Alberta Action and the Manitoba Action would be discontinuing their respective lawsuits and that the plaintiffs in the Ontario Action would be applying to the Ontario Superior Court of Justice, in compliance with practice in that province, for approval of the discontinuance of that action. At the conclusion of the hearing, I directed that a Case Planning Conference take place in the early 2011. [ 12 ] On 29 October 2010, counsel for the plaintiffs in the Alberta Action filed their Notice of Discontinuance.

A similar notice was filed by counsel for the plaintiff in the Manitoba Action on 29 November 2010. [ 13 ] During the late fall and early winter of 2010, counsel for the plaintiffs and counsel for the defendants in the Ontario Action corresponded with respect to the terms of the proposed agreement to discontinue the action and the steps necessary to obtain the court’s approval. By late 2010, counsel for the defendants in the Ontario Action believed an agreement had been reached.

Although counsel for the plaintiffs had agreed to discontinue the Ontario Action , they did so without fully considering all of the implications of such a move and in particular its impact on potential limitation dates. At some point, counsel with the MLG realized that the limitation period in Ontario may not have been suspended by the commencement of the Dodd Action in British Columbia. More importantly they concluded there would be prejudice to the Ontario class members if the Ontario Action was discontinued and the limitation period expired before those plaintiffs could opt into the Dodd Action .

Having realized this, counsel for the plaintiffs in the Ontario Action advised counsel for the defendants in that action, as well as counsel in the Dodd Action, that they no longer agreed to discontinue the Ontario Action .

Counsel for the plaintiffs also informed counsel for the defendants that they would oppose any application to confirm the purported settlement agreement in the Ontario Action . [ 14 ] In early 2011, counsel for the defendants in the Ontario Action sought an order of the Ontario Superior Court of Justice to enforce the agreement to discontinue the action that they alleged existed between the parties. The defendants’ motion was heard by Mr.

Justice Smith on 8 February 2011, and at the conclusion of the hearing the court reserved its decision. [ 15 ] On 4 March 2011, counsel in the Dodd Action appeared before me at a Case Planning Conference. A number of issues were addressed at this conference, including the scheduling of the certification hearing. Counsel also addressed the issue of the plaintiff’s desire to amend his pleadings. The only substantive order made at the Case Planning Conference related to the scheduling of the certification hearing.

I also directed that another Case Planning Conference take place in July 2011. [ 16 ] On 7 March 2011, the plaintiff in the Dodd Action filed an Amended Notice of Civil Claim, amending his pleadings pursuant to Rule 6-1(1)(a). In doing so, the plaintiff purported to remove himself as the representative plaintiff in the Dodd Action . In his stead, the plaintiff substituted Ms. Dixon as the representative plaintiff for the British Columbia resident class and Ms. McFadzean, as the representative plaintiff for the out-of-province or non-resident class. I note parenthetically that Ms. Dixon and Ms.

McFadzean are also two of the plaintiffs in the Dixon Action . [ 17 ] In reasons for judgment delivered on 21 April 2011 and amended on 12 May 2011, indexed as Duong v. Stork Craft Manufacturing Inc. , 2011 ONSC 2534 , Mr. Justice Smith denied the defendants’ application to discontinue the Ontario Action . In his reasons, Smith J. addressed two questions. The first was whether the parties had reached a settlement agreement to discontinue the action. The second question was whether a discontinuance should be judicially approved, without notice to class members.

In response to the first question, Smith J. found that a settlement agreement had been reached between the parties. On the second question, Smith J. concluded the potential expiry of the Ontario class members’ limitation period before they could opt in to the Dodd Action would be

prejudicial to their interests, and for that reason he declined to approve the discontinuance of the Ontario Action . [ 18 ] On 20 May 2011, counsel for the defendants in the Dodd Action filed an application seeking an order striking the portions of the plaintiff’s Amended Notice of Civil Claim that purported to substitute Ms. Dixon and Ms. McFadzean in place of Mr. Dodd as the representative plaintiffs. The defendants filed a second application that same day, seeking an order directing Mr.

Dodd to make his baby crib available for inspection and examination by an expert retained by Stork Craft. [ 19 ] On 24 May 2011, counsel for the plaintiff in the Dodd Action filed an application seeking to have Mr. Dodd removed as the representative plaintiff and to have Ms. Dixon and Ms.

McFadzean added as the plaintiffs in his place. [ 20 ] I heard all three applications on 6 June 2011, and in reasons delivered on 16 June 2011, I allowed the defendants’ applications and denied the plaintiff’s application. [ 21 ] On 14 July 2011, the plaintiff in the Dodd Action filed a notice seeking leave to appeal my order dismissing his application and my order granting the defendants’ application to strike out portions of the Amended Notice of Civil Claim.

That application for leave to appeal is still pending. [ 22 ] On 15 September 2011, the defendants’ application for leave to appeal Smith J’s decision in the Ontario Action was heard by Kealey J. of the Ontario Superior Court of Justice. On 7 October 2011 leave was denied: Duong v. Stork Craft Manufacturing Inc. , 2011 ONSC 5618 . [ 23 ] On 12 October 2011, counsel in the Dodd Action appeared before me to settle the terms of my 16 June 2011 order. The order was settled on the following terms: 1.

The Plaintiff’s application pursuant to Rule 6-2(7) that Cedar Dodd cease to be a plaintiff in this action be and is hereby dismissed; 2. The Plaintiff’s application pursuant to Rule 6-2(7) to add Jane Dixon and Loretta McFadzean as plaintiffs be and is hereby dismissed; 3. Paragraphs 1.1 and 1.2 of the Amended Notice of Civil Claim be and are hereby struck out. [ 24 ] On 25 October 2011, counsel for the plaintiff in the Dodd Action filed an application to amend the Notice of Civil Claim and to add Ms. Miller and Ms. Elliott as proposed representative plaintiffs in the action. Ms. Miller and Ms.

Elliot are the other two plaintiffs in the Dixon Action . This application has not been set for hearing. [ 25 ] On 4 November 2011, the same counsel with the MLG who is acting for the plaintiff in the Dodd Action , filed the Notice of Civil Claim and Notice of Application for Certification in the Dixon Action .

In their Notice of Application for Certification, the plaintiffs seek an order joining their action with the Dodd Action “for the purposes of certification and trial of the common issues”. [ 26 ] A review of the Notices of Civil Claim in the Dodd Action and the Dixon Action discloses that the facts alleged and the claims being advanced are practically identical. The only noticeable differences between the two actions are:

a) Toys “R” Us (Canada) Ltd., Toys “R” Us (Canada) Ltée is a named defendant only in the Dixon Action ;

b) Ms. Dixon and Ms. McFadzean, the two individuals who unsuccessfully sought to be added as plaintiffs in the Dodd Action , are named plaintiffs in the Dixon Action ;

c) Ms. Miller and Ms. Elliot, the two individuals whose application to be added as plaintiffs in the Dodd Action remains outstanding, are named plaintiffs in the Dixon Action ; and

d) there are three new causes of action pleaded in the Dixon Action : I. deceptive trade practices under the Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2; II. breach of an alleged contractual duty and duty of care to protect the “peace of mind of class members”; and III. negligent design and implementation of the recall of the cribs in question. [ 27 ] On 23 November 2011, counsel for the defendants Stork Craft, Sears, Wal-Mart and Toys “R” Us filed the present application seeking a stay of the Dixon Action or in the alternative, an order striking out the entirety of the plaintiffs’ pleadings in the action.

Issue [ 28 ] The question to be determined on this application is whether the Dixon Action is vexatious and or an abuse of the court’s process. The Law [ 29 ] The defendants rely upon Rule 9-5 and specifically sub-rules 9-5(1)(

b) and (

d) as the foundation for their application. Those two provisions read as follows: Rule 9-4 - Striking Pleadings

(1) At any state of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or

other document on the ground that … (

b) it is unnecessary, scandalous, frivolous or vexatious; … (

d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceedings to be stayed or dismissed and may order the costs of the application tobe paid as special costs. [30] In Re Lang Michener et al. v. Fabian et al. (1987), (ON SC), 59 O.R. (2d) 353 (Ont. H.C.J.), Henry J.described the nature of a vexatious action at 358 - 359: (

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdictionconstitutes a vexatious proceeding; (

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person canreasonably expect to obtain relief, the action is vexatious; (

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties bymultifarious proceedings brought for purposes other than the assertion of legitimate rights; (

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequentactions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlierproceedings; (

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whetherthere was originally a good cause of action; (

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered indetermining whether proceedings are vexatious; and (

g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conductof legal proceedings. [31] The above-noted observations from Re Lang Michener were referred to approvingly by the British Columbia Court of Appeal inDempsey v. Casey, 2004 BCCA 395. [32] In Toronto (City) v.

C.U.P.E., Local 79, 2003 SCC 63 , [2003] 3 S.C.R. 77, Arbour J. explained the concept of abuse ofprocess as follows at para. 37: … the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way thatwould…bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), (ON CA), 51O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)).

Goudge J.A. expanded onthat concept in the following terms at paras. 55-56: The doctrine of abuse of process engaged the inherent power of the court to prevent the misuse of its procedure, in a way that would bemanifestly unfair to a party to the litigation before it would in some other way bring the administration of justice into disrepute. It is aflexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v.Waite, [1990] 3 W.LR. 347 at p. 358, [1990] All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attemptto relitigate a claim which the court has already determined. [Emphasis in the original.] [33] What little distinction exists between a vexatious action and one that is an abuse of process is often not clear as the two conceptshave strikingly similar features. Macaulay J. noted this in Freshway Specialty Foods v. Map Produce LLC, et al., 2005 BCSC 1485, atpara. 52: [52] There is no bright line dividing a vexatious proceeding from one that is an abuse of the court’s process.

In my view, the factorsthat signal a vexatious proceeding also signals an abusive process. Abuse of process is a wide concept however and may extend beyondvexatious proceedings to capture any circumstance in which the court’s process is used for an improper purpose. As pointed out byBaker J. in Babavic v. Babowech, [1993] B.C.J.

No. 1802 (S.C.), a decision not referred to by counsel, the categories of abuse of processremain open and include, for example, “proceedings which are without foundation or serve no useful purpose and multiple or successiveproceeding which cause or are likely to cause vexation or oppression” (para. 18). Discussion Preliminary Matter: The Settlement Agreement [34] The plaintiffs complain that the progress of this important class-action litigation has been unnecessarily complicated and

protracted by the inconsistent positions the defendants have adopted and advanced in the Dodd Action and the Ontario Action . Counsel for the plaintiffs points to what he says was the settlement agreement between himself as counsel with the MLG representing Mr. Dodd and the plaintiffs in the Ontario, Alberta and Manitoba actions and counsel for the defendants in the Dodd Action , who is a member of the law firm representing the defendants in those other actions.

Counsel for the plaintiffs claims all of the parties agreed that in return for the discontinuance of the Ontario, Alberta and Manitoba actions, the defendants in the Dodd Action would agree to proceed with a certification application in British Columbia with proposed representative plaintiffs for each of a resident class and a non-resident sub- class. Counsel for the plaintiffs further asserts that the defendants have breached the settlement agreement by seeking a discontinuance of the Ontario Action while at the same time opposing the addition of non-resident plaintiffs in the Dodd Action .

Counsel for the plaintiffs says the defendants should not be permitted to have it both ways and that these contradictory positions amount to an abuse of the court’s process justifying the dismissal of their application. [ 35 ] In his written submission, counsel for the plaintiffs explained the plaintiffs’ position on the settlement agreement as follows: In reliance on the agreement with the Defendants, the plaintiffs in Manitoba and Alberta discontinued those actions.

The B.C. action [the Dodd Action ] was moved forward, with the expectation that non-residents would be able to opt-in, in reliance on the agreement and the Defendant’s representations. … While there are proposed class actions in three other jurisdictions (Saskatchewan, Ontario and Quebec), the actions are not going forward in those jurisdictions pursuant to the parties’ agreement. Moreover, the Alberta and Manitoba actions (where court approval of discontinuance is not required) were discontinued pursuant to the agreement and class members resident in those provinces, such as Ms.

Miller, do not have remedies in their own provinces. … On the other hand, it has always been the Defendants’ expectation that the B.C. action would proceed and proceed with non-resident claimants. [ 36 ] In support of the argument that there is an agreement between the parties and that it includes the defendants in the Dodd Action agreeing to have the action proceed with non-resident plaintiffs, counsel for the plaintiffs relies on the findings of Smith J. in Duong, supra , that the ability of Ontario class members to opt into the Dodd Action was an essential term of the parties’ agreement to discontinue the Ontario Action . [ 37 ] The defendants maintain that the plaintiffs’ position regarding the settlement agreement is incorrect on a number of fronts.

First, the defendants point to the fact that the plaintiffs argued before Smith J. that the parties had been unable to agree on the terms of a settlement agreement and consequently no such agreement existed. According to the defendants, if any party has adopted inconsistent positions in the Dodd Action and the Ontario Action it is the plaintiffs and not the defendants.

Second, the defendants submit there is no evidence before this court to support any finding that the parties have agreed not to go forward with the Saskatchewan Action or the Québec Action ; that “it has always been the defendants’ expectation that the B.C. action [the Dodd Action ] would proceed and proceed with non-resident claimants”; or that the defendants have agreed that non-resident plaintiffs would be added to the Dodd Action . [ 38 ] On the issue of the existence of a settlement agreement, Smith J. explained his findings at paras. 35, 36 and 39 of his reasons in Duong : [35] In her reply of November 1, 2010, counsel for the plaintiffs agreed to amend her motion materials to remove the statement that the discontinuance was made "on consent" of Stork Craft.

She also agreed to remove the statement that Stork Craft agreed that notice was not required and advised the defendants that she was preparing affidavits for the other two representative plaintiffs. Finally, she confirmed that the three representative plaintiffs were prepared to discontinue "with prejudice" to themselves only. [36] I find that at this point in time, viewed objectively, the parties had reached an agreement on all of the essential terms. Plaintiffs' counsel had agreed to the proposed amendments of counsel for the defendants.

As a result, I find the parties reached an agreement on all of the essential terms of the discontinuance of the class proceeding in Ontario, provided the discontinuance was without costs and that notice was not ordered. This settlement agreement was an amendment to the original agreement between Mr.

Williams, plaintiffs' counsel in British Columbia and counsel for the defendants wherein it was mutually agreed that the plaintiffs would proceed with the class action in British Columbia and discontinue in Alberta, Manitoba and Ontario. … [39] For the above reasons, I find that a settlement agreement was reached between the parties on all of the essential terms to discontinue the class proceeding in Ontario and to proceed with the class proceeding in British Columbia, with prejudice to the three representative plaintiffs and provided notice was not given to Ontario class members.

I also find that before the motion for discontinuance was brought, the plaintiffs' counsel became aware of the potential prejudice to Ontario class members as a result of the possible expiry of the limitation periods for the Ontario class members before the class in British Columbia was certified.

The representative plaintiffs ultimately opposed the motion for discontinuance for this reason. [ 39 ] In reaching his conclusion about the parties’ settlement agreement, Smith J. inferred that an “essential term” of the agreement was that the parties would proceed to a certification hearing in the Dodd Action and that the Ontario class members would have the opportunity to opt into the action if it was certified. [ 40 ] I do not know what evidence was before Smith J. that permitted him to find the defendants had agreed to allow a non-resident sub-class of plaintiffs from Ontario to opt into the Dodd Action .

Neither side presented me with any evidence relating to such an agreement. In my view, if such an agreement did exist, it would have rendered the defendants’ application of 20 May 2011 redundant. I am also puzzled by the fact that counsel for the plaintiff in the Dodd Action did not bring Mr. Justice Smith’s reasons for judgment to my attention at the hearing in June 2011. The plaintiffs suggest they were unable to use Smith J.’s decision at that hearing because the defendants’ application for leave to appeal had not yet been determined. That submission is unconvincing.

The reasons for judgment of Smith J. were delivered on 21 April 2011 and amended on 12 May 2011 and I see no valid reason why counsel for Mr. Dodd could not have brought Mr. Justice Smith’s findings and judgment to my attention. Had counsel done so, he could have addressed the question of

what evidence was before the court that led Mr. Justice Smith to infer that allowing the Dodd Action to proceed with non-resident sub- class plaintiffs was an essential term of the agreement. [ 41 ] Given the lack of evidence before me on this issue, an issue that may have had a critical impact on this application, I find myself unable to conclude that the defendants have agreed to allow a non-resident sub-class to join the Dodd Action . It would appear that Mr. Justice Smith had some evidence before him that allowed him to infer that fact. I do not and therein lies the dilemma.

In my view I should be cautious about accepting the factual findings of an extra-provincial court unless the parties have squarely addressed before me the same issue.

Given the parties’ decision not to raise or argue the question of the settlement agreement when they appeared before me in June 2011, I say with the greatest of respect for my colleague in Ontario, that I cannot adopt the factual findings he made in the Ontario Action , and in particular I cannot not find either directly or inferentially that the defendants have agreed to proceed with the certification application in the Dodd Action with a non-resident sub-class represented. [ 42 ] I now turn to the principal issue before me.

The defendants have advanced a number of arguments why the Dixon Action is vexatious and or an abuse of the court’s process. I have reframed those arguments into questions and will deal with each of them in turn. Does the Dixon Action re-litigate the issue of adding new representative plaintiffs to the Dodd Action ? [ 43 ] The defendants assert that the Dixon Action is an improper second attempt to have Ms. Dixon and Ms.

McFadzean added as plaintiffs in the Dodd Action , after their first attempt to do was dismissed by this court. [ 44 ] The plaintiffs deny that the Dixon Action is a re-litigation of the failed attempt to add Ms. Dixon and Ms. McFadzean as proposed representative plaintiffs in the Dodd Action . Counsel for the plaintiffs points to the fact that my order of 16 June 2011 denied the application to add the plaintiffs and did not address the possibility of consolidating the Dodd Action with another action.

As the rules and tests for adding parties are different from those applicable to the consolidation of actions, the plaintiffs maintain that my order of June 2011 does not foreclose them from attempting to join their action with the Dodd Action . [ 45 ] The plaintiffs also point out that the defendants have always known of the plaintiffs’ intention to have their claims joined with Mr. Dodd’s claims and consequently there can be no suggestion that the defendants have been surprised or suffered any prejudice. [ 46 ] In my opinion, there is merit in the defendants’ position on this question. The issue of Ms.

Dixon’s and Ms. McFadzean’s participation as plaintiffs in the Dodd Action was addressed and determined in June 2011. Unless varied or overturned on appeal, I am of the view that my order resolves the issue. Ms. Dixon’s and Ms. McFadzean’s lawsuit is in my opinion a mirror image of the Dodd Action . To allow the Dixon Action to stand and be consolidated with the Dodd Action would unfairly and improperly allow Ms. Dixon and Ms. McFadzean to obtain the result they initially sought in the Dodd Action (i.e., becoming representative plaintiffs) without Mr.

Dodd having to proceed with his appeal of my 16 June 2011 order. [ 47 ] The fact that the rules and tests applicable to an application to consolidate two actions may be different from those that govern an application to add plaintiffs to an action is, in my respectful view, of no consequence in the present instance. On the evidence before me it is clear that one of the purposes of the Dixon Action is to get Ms. Dixon and Ms. McFadzean added as representative plaintiffs in the Dodd Action . I agree with the defendants that this is an impermissible attempt to re-litigate an issue that has already been resolved.

Does the Dixon Action circumvent the appeal process in the Dodd Action ? [ 48 ] The defendants argue that by initiating the Dixon Action and seeking to have it consolidated with the Dodd Action , the plaintiffs are enabling Mr. Dodd to avoid having to proceed with his appeal of my 16 June 2011 order. With the two actions consolidated, Ms. Dixon and Ms. McFadzean will become plaintiffs in the litigation, notwithstanding my order of 16 June 2011.

In short, the defendants argue that the Dixon Action results in an impermissible collateral attack on my order in the Dodd Action . [ 49 ] The plaintiffs maintain that one of the principal reasons they launched their action was because the appeal materials in the Dodd Action could not be prepared until the terms of my order of 16 June 2011had been settled. That occurred on 13 October 2011. By that date, the plaintiffs say it was too late to

schedule and have the appeal heard before the expiry of the non-resident plaintiff’s limitation date of 23 November 2011.

Consequently, in order to avoid any prejudice to members of a non-resident sub-class of plaintiffs, they started their action (i.e., the Dixon Action ). [ 50 ] In his written submissions, counsel for the plaintiffs addresses the issue of the appeal in the Dodd Action as follows: It is not necessary for a party to go forward with an appeal simply because they at one time intended to appeal and under the doctrine of mootness, if an issue is moot the Court of Appeal will decline to hear the matter.

If the plaintiffs’ application to consolidate is successful, the appeal will be moot. [ 51 ] In my view, the plaintiffs’ arguments are unpersuasive. I find the defendants are correct when they argue that consolidation of the Dixon Action with the Dodd Action would essentially permit the plaintiffs in both actions to evade the order I made on the issue of adding Ms. Dixon and Ms. McFadzean as non-residence representative plaintiffs in the Dodd Action . This, in my opinion, would amount to a collateral attack on my order of 16 June 2011 and an impermissible circumvention of the Rules of Court .

Was the Dixon Action commenced for an improper purpose? [ 52 ] The defendants say the purposes underlying the initiation of the Dixon Action are improper and consequently make the action an abuse of process. The defendants list three such improper purposes:

a) an improper attempt to add new causes of action to the Dodd Action ;

b) an improper attempt to add new representative plaintiffs in the Dodd Action ; and

c) an improper attempt to toll the limitation period applicable to the proposed new plaintiffs. [ 53 ] In his written submissions, counsel for the plaintiffs explains the purpose of the Dixon Action as follows: The Dixon action was necessitated by the Defendants’’ failure to honour their agreement that the actions in Alberta, Manitoba and Ontario would be discontinued in favour of the class action in British Columbia, which included a non-resident class, proceeding to the hearing of the certification application and by their decision to argue that the limitation period for the non-resident class has not been preserved. … The Dixon action was filed out of caution to preserve the rights of Ms.

Miller and Ms. Elliot on behalf of other non-resident plaintiffs as part of an active litigation plan (that from the outset included consolidating the Dixon action with the Dodd action and moving it to certification), not to simply “toll” the limitation period and have the action sit. … It was never intended that the Dixon action and the Dodd action would co-exist. [ 54 ] The plaintiffs assert that they could not have proceeded with the application filed on 24 October 2011 to add Ms. Miller and Ms. Elliot to the Dodd Action prior to the expiry of the November 2011 limitation date.

Counsel for the plaintiffs explains this position in his written submissions as follows: there is ample evidence that Mr. Dodd and Ms. Miller and Ms. Elliot … filed and served application on 25 October 2011 under Rule 6- 2(7) to add Ms. Miller and Ms. Elliot to the Dodd action, but this application could not be heard before the November 23, 2011 potential limitation date, so the Dixon action was filed with Ms. Miller and Ms.

Elliot as plaintiffs as a precautionary measure. [ 55 ] As already noted in these reasons, the Dixon Action includes new allegations of deceptive trade practices, breach of a contractual duty and duty of care and negligent design and implementation of the Recall. The defendants submit that if the Dixon Action is allowed to stand and is consolidated with the Dodd Action , then these new claims will be incorporated into the Dodd Action without Mr. Dodd having had to make the necessary application to amend his pleadings. In his affidavit sworn 10 November 2011, Mr.

Dodd explains that his counsel inadvertently omitted to include unjust enrichment from the common issues for which certification is being sought in the Dodd Action . Mr. Dodd explains at para. 23 of his affidavit: These are the same proposed common issues that I would seek to have certified in the amended Application for Certification that was prepared for this action, with the exception that the Dixon Application for Certification seeks to certify as a common issue whether the Defendants were unjustly enriched.

Unjust enrichment is a cause of action pled in this action, though I am advised by my counsel it was inadvertently left out of the Amended Application for Certification in this action. [ 56 ] I agree with the defendants that if the plaintiff in the Dodd Action wishes to amend his pleadings then he should seek the defendants’ consent to do so or obtain a court order permitting it. It is improper in my view to secure these amendments, by means of a consolidation of the Dodd Action with the Dixon Action .

The same can be said about the fact that a consolidation of the Dixon Action with the Dodd Action would result in Ms. Dixon and Ms. McFadzean joining this class action litigation notwithstanding the fact that I denied their application to join the Dodd Action . [ 57 ] The defendants also claim that the initiation of the Dixon Action was for the purpose of tolling the applicable limitation period. In support of this contention, the defendants point to the affidavit of Mr. Dodd sworn 10 November 2011 and filed in both the Dodd Action and the Dixon Action , wherein Mr.

Dodd swears the following, at paras. 18 and 19: [18] On or about November 3, 2011 Stork Craft advised my counsel that they would oppose the addition of the non-resident representative plaintiffs in this, the Dodd action. I was concerned that the application to add these non-resident representative plaintiffs [Ms. Miller and Ms. Elliot] would not be heard before the limitation period governing their right to commence an action in B.C. expired on November 23, 2011.

I am aware that the plaintiffs proposed to be added to this action as non-resident representative plaintiffs commenced a similar action on November 4, 2011 in order to preserve the rights of non-resident claimants in B.C. This new action is the Dixon action. [19] I have reviewed the Notice of Civil Claim in the Dixon Action … and it is my conclusion that the claim asserts the same type of claims, regarding the same cribs, over the same time period, as made in the proposed Amended Notice of Civil Claim in my case.

I have also reviewed the affidavits of Jane Dixon (sworn November 6, 2011), Dana Miller (sworn November 9, 2011), Lisa Elliott (sworn November 8, 2011), and Loretta McFadzean (sworn November 7, 2011). I conclude the complaints set out in those affidavits are very similar to my complaints. [ 58 ] As a general response, the plaintiffs maintain that the Dixon Action was not designed for the improper purpose of tolling any limitation period.

In his written submission, counsel for the plaintiff explains: Regarding the allegation that the Dixon action is an abuse as effort (sic) to ‘retroactively toll the limitation period’, the plaintiffs submit that commencing the Dixon action was a legitimate precautionary measure in response to the Applicants maintaining their right to a limitation defence, while simultaneously refusing to consent to addition of a non-resident representative claimant.

Moreover, the Dixon action was not commenced as a lone notice of civil claim, as one might imagine a party to do if the objective was simply to toll the limitation period. Rather, the Dixon action was filed and served with an application (and supporting affidavits) seeking, firstly, immediate joinder with the Dodd action, and secondly certification with the joined Dodd action. [ 59 ] In his written submissions counsel for the plaintiffs explains:

There is ample evidence that Mr. Dodd and Ms. Miller and Ms. Elliot (and not Ms. Dixon or Ms. McFadzean) filed an servedapplications on October 25, 2011 under Rule 6-2(7 to add Ms. Miller and Ms. Elliot to the Dodd action, but this application could not beheard before the November 23, 2011 potential limitation date, so the Dixon action was filed with Ms. Miller and Ms. Elliot as plaintiffsas a precautionary measure. [60] In my view, the consolidation of the Dixon Action with the Dodd Action necessarily will result in the impermissible tolling ofthe limitation period. Moreover, while it may have been challenging to

schedule a hearing and have the application to add Ms. Miller andMs. Elliot to the Dodd Action resolved before 23 November 2011, I find it was possible had counsel truly wanted to do so. My limitedavailability to hear the application before the November deadline was one reason counsel for the plaintiffs cites for not proceeding withthe application. As far as I can determine, no serious effort was made to have the application scheduled before the November deadline.

Ifit had turned out that I was not available to hear the matter in the time required, then counsel could have requested that another judgehear and decide the application in my place; however, no such request was made. While the issue of adding Ms. Miller and Ms. Elliot tothe Dodd Action was made more complicated by the dispute that arose between counsel regarding the terms of the settlement agreementin the Ontario Action, I still remain of the opinion that the application could have been addressed prior to 23 November deadline hadcounsel wanted to pursue the issue.

Is it an abuse of process to have both the Dodd Action and Dixon Action active at the same time? [61] It is an abuse of process for a plaintiff to have multiple actions seeking the same relief outstanding against the same defendant:Boehringer Ingelheim (Canada) Ltd. v. Englund et al., 2007 SKCA 62. To a similar effect, in Balm v. BHC Securities Inc., 2003 ABQB773, the court concluded that two actions brought by the same plaintiff against the same defendant seeking essentially the same reliefconstituted an abuse of process. A similar conclusion was reached in Marandola v. General Motors du Canada Ltée, [2004] Q.J.

No.9795 (S.C.), where three actions were commenced against the same defendants and there was no attempt on the part of the plaintiffs toseek consolidation of the cases. [62] The Dodd Action was commenced on 24 November 2009. The Dixon Action was commenced on 4 November 2011. Clearlytwo actions have been commenced in British Columbia for essentially the same relief against the same defendants. Mr.

Doddacknowledges this fact at para. 19 in his affidavit sworn 10 November 2011. [63] Although the plaintiffs in each of the actions are nominally different, in my view they are clearly associated in that two of theDixon Action plaintiffs have already attempted to join the Dodd Action and the other two plaintiffs have an application to join that actionpending.

Moreover, they are represented by the same legal counsel. [64] Counsel for the plaintiffs distinguishes the cases the defendants cite in support of their argument by highlighting the fact that atthe same time as the Dixon Action was filed, an application seeking an order consolidating it with the Dodd Action was filed.

This, sayscounsel for the plaintiffs, addresses the concerns expressed in the jurisprudence about the multiplicity of proceedings against the samedefendant for essentially the same relief being an abuse of process. [65] Counsel for the plaintiffs also argues that the expectation that the Dixon Action will be successfully consolidated with the DoddAction is a reasonable one. In support of this position, the plaintiffs rely upon a number of case authorities including: Iverson v. Canada(Fisheries and Oceans), 2011, BSCS 1619; Heron v. Guidant Corp., [2007] O.J.

No. 3823 (S.C.), leave to appeal refused [2007] O.J.No. 3823; Logan v. Canada (Minster of Health), [2003] O.J. No. 418 (S.C.), aff’d (ON CA), [2004] O.J. No. 2769(C.A.); Birrell v. Providence Health Care Society, 2007 BCSC 668, aff’d 2009 BCCA 109; Gregg v. Freightliner Ltd. et al., 2003 BCSC241; Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095; and Haddad v. The Kaitlin Group Ltd., [2008] O.J.

No. 5127 (S.C.). [66] In my opinion, the case authorities cited by the plaintiff are of limited assistance as they fail to address a situation such as theone presently before me where the initiation of a second parallel action with an accompanying application to consolidate it with the firstaction results in the tolling of an applicable limitation period. All of the above-noted cases relate to the substitution of proposedrepresentative plaintiffs or the addition of proposed representative plaintiffs for reasons much different than those in the present action.

Decision [67] For the defendants to be successful on this application, I must be satisfied that the Dixon Action is plainly and obviouslyvexatious or an abuse of process: Freshway, supra.; Shushwap Lake Utilities Ltd. v. Mattison, 2008 BCCA 176. [68] On the evidence before me, I find the claims being advanced in the Dixon Action are practically a mirror image of the DoddAction in that they essentially repeat and expand upon the claims made in the Dodd Action. The facts alleged in both actions areessentially the same as are the principal defendants.

While the plaintiffs in each action are nominally different, I find they are clearlyassociated and working in concert to advance overlapping claims in this jurisdiction. [69] The stated intention of the plaintiffs in the Dixon Action and the plaintiff in the Dodd Action is to have both actionsconsolidated. In my opinion, consolidation of these two actions would impermissibly and improperly permit the plaintiffs to circumventthe rules governing the adding of parties to an action and the amendment of pleadings. The same concern applies to the appeal processthat the plaintiff in the Dodd Action has initiated.

If the two actions are permitted to be consolidated, then the plaintiff in the DoddAction will have obtained what he initially sought and therefore there would be no need for him to pursue his appeal.

Finally, I find thejoining of the Dixon Action to the Dodd Action would improperly toll a limitation period and this on its own creates a measurableprejudice for the defendants. [70] Counsel for the plaintiffs explained the plaintiff’s view of the consequences that will result if the defendants’ application isgranted as follows: If the Dixon [Action] is struck or stayed and not consolidated with the Dodd Action, non-resident class members will face an unfair andlengthy delay, which will cause prejudice. They will have to await the outcome of the B.C. certification application and then wait for the

process to start anew in one of the other provinces that allows a national class. On the other hand, it has always been the Defendants’ expectation that the B.C. action would proceed and proceed with non-resident claimants. [ 71 ] Counsel for the plaintiffs urges the court not forget or dismiss the interests of the class of plaintiffs Ms. Dixon, Ms. Miller, Ms. McFadzean and Ms. Elliot wish to represent in this litigation.

I agree those interests need to be assessed on this application; however, having considered all of the evidence presented, I do not agree that any delay resulting from the granting of the defendants’ application will result in undue prejudice or harm to any of the plaintiffs. Moreover, as I have already noted, there is no evidence before me that supports the assertion that the defendants expected to have the Dodd Action proceed with non-resident plaintiffs. [ 72 ] In my view, the position taken by the defendants on this application is the correct one.

The Dixon Action attempts to re-litigate an issue that has already been adjudicated upon; it evades the appeal process that the plaintiff in the Dodd Action has initiated; it circumvents the rules of court that govern the adding of parties to an action and the amendment of pleadings; and it results in the improper tolling of a limitation period. For all of these reasons, I find the Dixon Action is vexatious and an abuse of the court’s process. Order [ 73 ] The defendants’ application is granted and the plaintiffs’ action is hereby stayed. [ 74 ] The defendants are entitled to their costs. “G.R.J. Gaul, J.”