Drover v. BCE Inc., 2013 BCSC 1341

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Drover v. BCE Inc., 2013 BCSC 1341 Date: 20130726 Docket: 04-4697 Registry: Victoria Between: Steve Drover, Shelley Frank, John Gillis, Michael Lucas, Mark Frey, Trudy Betthel, Bryan Pawlachuk, Nathalie Pawlachuk, D&S Homes Ltd., Jerry Karalash, Jennifer Evenson, Danielle Favreau, Jeff Ledding, Terese Hafichuk-Walkin, Jessica Cordingley, Alison Weinberger, Terry Parker, Carol Walker, Cindy Belton, Leigh Edmunds, Lauren Tomashich, Stan Pappas, Amanda Donald, Richard Skuce, Lant Lutterodt John Doe I, Jane Doe I, John Doe Ltd.

I, John Doe II, Jane Doe II, John Doe Ltd. II, John Doe III, Jane Doe III, John Doe Ltd. III, John Doe IV, Jane Doe IV, John Doe Ltd. IV, John Doe V, Jane Doe V, John Doe Ltd. V, John Doe VI, Jane Doe VI, John Doe Ltd. VI, John Doe VII, Jane Doe VII, John Doe Ltd. VII, John Doe VIII, Jane Doe VIII, John Doe Ltd. VIII, John Doe IX, Jane Doe IX, John Doe Ltd. IX, John Doe X, Jane Doe X, John Doe Ltd. X, John Doe XI, Jane Doe XI, John Doe Ltd. XI, John Doe XII, Jane Doe XII, John Doe Ltd. XII, John Doe XIII, Jane Doe XIII, John Doe Ltd. XIII, John Doe XIV, Jane Doe XIV, John Doe Ltd.

XIV, John Doe XV, Jane Doe XV, John Doe Ltd. XV, John Doe XVI, Jane Doe XVI, John Doe Ltd. XVI, John Doe XVII, Jane Doe XVII, John Doe Ltd. XVII, John Doe XVIII, Jane Doe XVIII, John Doe Ltd. XVIII, John Doe XIX, Jane Doe XIX, John Doe Ltd. XIX, John Doe XX, Jane Doe XX, John Doe Ltd. XX, John Doe XXI, Jane Doe XXI, John Doe Ltd. XXI, John Doe XXII, Jane Doe XXII, John Doe Ltd.

XXII, John Doe XXIII, John Doe XXIV, John Doe XXV, John Doe XXVI, and John Doe XXVII Plaintiffs And BCE Inc., Bell Canada, Bell Mobility Cellular Inc., Bell Mobility Inc., Aliant Telecom Inc., Bell Atlantic, Maritime Tel & Tel Ltd., NBTel Inc., Island Telecom Inc., NewTel Communications Inc., MTS Communications Inc., TELUS Corporation, TELUS Mobility, B.C.

TEL, TELUS Communications (B.C.) Inc., Clearnet Communications Inc., Alberta Government Telephones (AGT), Saskatchewan Telecommunications (SaskTel), Saskatchewan Telecommunications Holding Corporation, AT&T Canada Inc., Microcell Telecommunications Inc., Rogers Communications Inc., Rogers Cantel Inc., Rogers Wireless Inc, and Rogers AT&T Wireless Defendants Before: The Honourable Mr. Justice Weatherill Reasons for Judgment Counsel for the Plaintiffs: E. F. A. Merchant, Q.C. Counsel for BCE Inc., Bell Canada, Bell Mobility Cellular Inc., Bell Atlantic and Bell Mobility Inc.: R. J. C. Deane S. T. C.

Warnett Counsel for Aliant Telecom Inc. L. Brasil J. Campbell Place and Date of Hearing: Vancouver, B.C. June 7, 2013 Place and Date of Judgment: Victoria, B.C. July 26, 2013 Introduction [ 1 ] The applicants in this proposed class action proceeding seek an order pursuant to R. 9-5(1)(

d) of the Supreme Court Civil Rules

dismissing or staying this action against them on the ground that it is an abuse of process. Background [ 2 ] On August 9, 2004, a proposed class action was commenced by the Merchant Law Group (“MLG”) in the Saskatchewan Court of Queen’s Bench. The named representative plaintiffs included Mark Frey, Steve Drover, Shelley Frank and Lant Lutterodt.

The action challenges the propriety of system access fees charged and collected by various Canadian cellular providers (including the applicants) from their respective customers (the “Frey Action”). [ 3 ] Similar proposed class actions were subsequently commenced by MLG in other provinces. On November 1, 2004, this action (the “Drover Action”) was commenced by MLG in British Columbia against the same defendants as were named in the Frey Action. The named representative plaintiffs are many of the same individuals named in the Frey Action, including Mr. Frey, Mr. Drover, Ms. Frank and Mr. Lutterodt.

The allegations in the Drover Action are virtually identical to those in the Frey Action, with the exception that the Frey Action expressly pleads unjust enrichment whereas the Drover Action does not. [ 4 ] Despite lack of proper service of the writ of summons in the Drover Action, the applicants filed appearances. The other defendants named in the Drover Action did not. [ 5 ] No steps were taken by the plaintiffs in the Drover Action until November 2012, when they sought orders against those defendants who had not filed appearances to the effect that they had been validly served.

In reasons for judgment pronounced January 14, 2013, I dismissed the plaintiffs’ application, in part on the basis that it was an abuse of process for the same plaintiffs to sue the same defendants in two jurisdictions over the same complaint. That decision is currently under appeal. [ 6 ] This proceeding remained dormant for over eight years because the plaintiffs were focused on prosecuting the Frey Action. Certification of the Frey Action was initially denied by the Saskatchewan Court of Queen’s Bench on the basis that neither the proposed representative plaintiffs nor the litigation plan was acceptable.

In addition, the court found that all of the claims being advanced failed to meet the “plain and obvious” test for certification, with the exception of the claim for unjust enrichment. [ 7 ] The rejected causes of action in the Frey Action are identical to the causes of action that are raised in the Drover Action. [ 8 ] On February 13, 2008, the Saskatchewan Court of Queen’s Bench certified the unjust enrichment claim in the Frey Action as a class action on behalf of a national class (the “Frey Class”), which was defined as follows: (

i) all residents of Saskatchewan as at [February 13, 2008]; and (ii) all residents of Canada as at [February 13, 2008] who are not resident in Saskatchewan and who opt into this class action in the manner prescribed by Order of this Court who have purchased wireless services from any of the Defendants between April 1, 1987 and the date of this Order and who have paid a fee variously described as ‘system access fees’, ‘system administration fees’, ‘license administration fees’ or ‘system license administration fees’… [ 9 ] The certification was affirmed by the Saskatchewan Court of Appeal on November 15, 2011.

Leave to appeal to the Supreme Court of Canada was dismissed on June 28, 2012. [ 10 ] As certified, any British Columbia resident is entitled to “opt in” to the Frey Action. [ 11 ] While the appeal of the certification order in the Frey Action was pending, the Class Actions Act , S.S. 2001, c. C-12.01 was amended to change the class action regime in that province from opt-in to opt-out. The amendments became effective on April 1, 2008. [ 12 ] The plaintiffs in the Frey Action then applied to convert the certified national sub-class from opt-in to opt-out.

That application was dismissed on May 7, 2009. [ 13 ] The plaintiffs in the Frey Action sought and obtained leave to appeal the denial of their application. However they failed to properly perfect the appeal and it was not heard. In August 2012, the plaintiffs applied to have the time for appeal extended. In its memorandum of argument in support of that motion, MLG wrote: This action is already certified as a multi-jurisdictional opt-in class action. Mr. Justice Gerein refused to amend the certification order to make the action a multijurisdictional opt-out action.

The practical result of his refusal to amend the order is that a multiplicity of other actions will be brought in courts across Canada and will be litigated for years to come simply to arrive at the very conclusion that has been nearly a decade in the making in Saskatchewan and has already been upheld to the highest court in Canada…What purpose or benefit to anyone would there be in pursuing a multitude of parallel actions, investing what will likely be millions of dollars of lawyers’ time and $100,000+ in further disbursements for each action , simply to obtain another certification in Alberta, and then another certification in Nova Scotia, and then…?

Even now, a copycat action filed in 2011 is being pursued in British Columbia, resulting in the likelihood of a carriage battle that will further delay and resolution of this case and only complicate resolution of this matter on a national basis. … Given the multitude of decisions made by Gerein J., all of which were reviewed by this Court, and that multiple decision making in multiple jurisdictions on the same issues will similarly be necessary, it is not a possibility, but a probability, that there will be disparate judicial dispositions bringing the administration of justice into disrepute.

[Emphasis in original.] [ 14 ] Meanwhile, on July 24, 2008, MLG commenced a new action in Saskatchewan (the “Collins Action”) in an attempt to circumvent the Saskatchewan Court of Queen’s Bench’s decision in the Frey Action denying the application to amend its certification order from opt-in to opt-out. In the words of the court, “the two actions are similar in the extreme”. On February 22, 2010, Mr.

Justice Gerein of the Saskatchewan Court of Queen’s Bench stayed the Collins Action as an abuse of process. [ 15 ] On December 16, 2011, a proposed class action was filed in British Columbia by Steffan Ileman (the “Ileman Action”) challenging the propriety of system access fees charged and collected by the cellular providers doing business in British Columbia. Unlike the Drover Action, it seeks remedies under the British Columbia Business Practices and Consumer Protection Act , S.B.C. 2004, c. 2.

In the alternative, it claims that the cellular providers were unjustly enriched by those fees. [ 16 ] On January 15, 2013, an amended statement of claim was filed in the Frey Action. It pleads only the unjust enrichment claim that was certified. As part of the amendment, all named plaintiffs were removed and a new sole representative plaintiff, Colin Chatfield, was substituted. [ 17 ] On April 17, 2013, the plaintiffs in the Frey Action applied to amend the certification order to expand the class time period for the recovery of system access fees.

The effect of this amendment, if granted, is that the Frey Action class time period would be identical to the class time period claimed in the Drover Action. The defendants in the Frey Action have offered to agree to that amendment without qualification.

MLG, for undisclosed strategic reasons, has not yet accepted that offer. [ 18 ] On May 15, 2013, the plaintiffs in the Drover Action filed an application to, inter alia , amend the statement of claim such that it essentially duplicates the amendments that were made to the statement of claim in the Frey Action, to add a claim for unjust enrichment, to remove all named plaintiffs except Mr. Lutterodt and to confine the scope of the proposed class in the Drover Action to residents of British Columbia. The hearing of that application was scheduled for the same day as the defendants’ application herein.

However, the application was adjourned by MLG without explanation. It has not been rescheduled. The Applicable Law [ 19 ] The doctrine of abuse of process can be invoked to prevent the misuse of the court’s procedures in a way that brings the administration of justice into disrepute. The doctrine concentrates on the integrity of the adjudicative process: Duzan v. Glaxosmithkline, Inc. , 2011 SKQB 118 at para. 26 . [ 20 ] The commencement by a plaintiff of more than one action against the same defendant in relation to the same dispute or matter can be an abuse of process: Lacharity v.

University of Victoria Students’ Society , 2012 BCSC 1819 at para. 24 . This principle has been extended to multiple class actions in the same jurisdiction against the same defendant and with respect to the same subject matter: Duzan , at para. 29 . In appropriate situations it also extends to multiple class actions commenced in multiple jurisdictions: Englund v. Pfizer Canada Inc. , 2007 SKCA 62 at paras. 34 and 36 . [ 21 ] There is good reason to avoid multiplicity of proceedings, as was observed by the Supreme Court of Canada in Toronto (City) v.

Canadian Union of Public Employees (C.U.P.E.) Local 79 , 2003 SCC 63 , at para. 51 : Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding.

Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses.

Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [ 22 ] Long ago, the Law and Equity Act , R.S.B.C. 1996, c. 253 codified these same sentiments.

Section 10 provides: Avoidance of multiplicity of proceedings 10 In the exercise of its jurisdiction in a cause or matter before it, the court must grant, either absolutely or on reasonable conditions that to it seem just, all remedies that any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters may be avoided. [ 23 ] Rule 9-5(1)(

d) of the Rules provides that:

(1) At any stage 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 … (

d) it is otherwise an abuse of the process of the court, … [ 24 ] In assessing whether a class action proceeding is an abuse of process, the court considers the entire context within which it has been brought: Bear v. Merck Frosst Canada & Co. , 2011 SKCA 152 at paras. 41 - 43 and 74 :

41 There is often no individual marker indicating whether a proceeding is an abuse of process. Rather, it is typically necessary to consider all of the relevant context and background in assessing whether an abuse of process has been established. In the circumstances of this appeal, it is necessary to compare Wuttunee with the Bear and Rybchinski Actions. It is also necessary to consider the significance of the relationship between the plaintiffs in Wuttunee and Messrs. Bear, Gurnsey and Rybchinski and, as well, MLG's involvement as counsel for all of these individuals.

Finally, it is necessary to consider the significance, if any, of the eleventh hour amendment of the statements of claim in the Bear and Rybchinski Actions which eliminated all reference to the proposed plaintiff classes. 42 I propose to examine these matters in turn but it might be useful, at the outset, to offer a brief

summary of the field of play. In my view, in its essence, this appeal involves a situation where MLG, acting on behalf of Mr. Wuttunee and then Messrs. Choquette and Derusha, deliberately pursued a very ambitious and imprecisely framed agenda in attempting to certify a class action against Merck. Most significantly for present purposes, it pursued relief in relation to a broad and vaguely described range of medical and health issues said to have been caused by Vioxx.

It was, of course, open to the plaintiffs and MLG, at any time during the Wuttunee proceedings, to scale back the claim to something more clear, focused and manageable. This was not done. Then, in the immediate wake of the decision denying certification in Wuttunee , but this time acting for Messrs. Bear, Gurnsey and Rybchinski, MLG launched reconstituted and avowedly narrower proceedings against Merck. These new proceedings were said to reflect the lessons of Wuttunee . 43 On any practical view of these facts--a view sensitive to the overall realities of class action litigation--it cannot be thought that Mr.

Wuttunee or Messrs. Choquette and Derusha (in the first instance) and Messrs. Bear, Gurnsey and Rybchinski (in the second) were independent plaintiffs acting at arm's length from one another. Rather, in substance, the Bear and Rybchinski Actions amount to an attempt, coordinated by MLG, to litigate a class action against Merck by way of instalment. When Plan A failed, Plan B was launched.

This, in my assessment, was an abuse of process. … 74 The lesson to be drawn from these authorities is that it is sometimes necessary and appropriate to look below the surface of class action proceedings in order to preserve the integrity of the administration of justice. In this regard, it is clear that class action litigation has some unique features.

Because there are a number of individuals with the same claim, it is possible to imagine a situation where a certification application is made and dismissed, another class member then steps forward as the proposed representative plaintiff with a refined certification application in hand only to have it dismissed, a third class member then steps forward with yet another approach to certification, and so on and so on. This would obviously be undesirable on a number of levels, especially those concerning the need for finality in litigation and the efficient use of the judicial system.

This is so regardless of whether a putative member of a proposed class can, in some formal way, be considered to be a privy of the representative plaintiff who brings an unsuccessful certification application.

Simply put, a defendant in a class action environment should not face a revolving door of representative plaintiffs who serially advance certification application after certification application until they (perhaps) find one that succeeds. [ 25 ] In situations involving parallel class actions, the putative class members are generally considered to be equivalent to, or in privity with, the named representative plaintiffs: Collins v. BCE Inc. , 2010 SKQB 74 , at para. 12 : It is recognized that the four persons named in the Collins action are not individually named in the Frey action.

This is a distinction without a difference. Because of the nature of class actions and because of the definition of the class in the Frey action, the persons named in the Collins action are included as plaintiffs in the earlier action which has been certified. In short, they are privies to the Frey action. Accordingly, the plaintiffs in the two actions are the same. [ 26 ] That the parallel proceedings have been commenced by the same counsel is also a relevant consideration.

In Bear , the court held, at para. 77 : It would be naïve, in my respectful view, to think that MLG’s common involvement with Wuttunee and with the Bear and Rybchinski Actions is of no import or consequence in the abuse of process analysis. Those actions must be seen as part of a common effort, effectively piloted or coordinated by MLG, to certify a Vioxx class action against Merck. This does not mean that these claims are MLG’s claims in any legal sense of the word.

It is only to say that MLG’s across-the-board involvement cannot be overlooked when determining if this sort of approach undermines the integrity of the adjudicative process. [ 27 ] The usual remedy for multiple proceedings that are an abuse of process is to stay one of the proceedings: Lacharity at para. 24 . Submissions of the Applicants [ 28 ] Counsel for the applicants submit that the concurrent maintenance of the Frey Action and the Drover Action is an abuse of process because, inter alia :

a) both actions concern the same subject matter and arise from the same factual scenario;

b) the causes of action advanced in the Drover Action are the same causes of action that were rejected for certification in the Frey Action;

c) the plaintiffs in the Drover Action are proposing to amend their pleadings to raise a claim in unjust enrichment, the same cause of action that was certified in the Frey Action;

d) the defendants are the same in both actions;

e) the plaintiffs in the Drover Action are the same as those who commenced the Frey Action and litigated it to certification. They remain part of the certified national class even though the named representative plaintiff was recently changed to Colin Chatfield;

f) the defendants in the Frey Action have consented to class period being extended such that it will be identical to that in the Drover

Action;

g) no plaintiff in the Drover Action has indicated that he/she will not participate in the Frey Action.

h) the relief sought in both actions is identical; and

i) the plaintiffs in both actions are represented by the same counsel. [ 29 ] The applicants argue that the recent amendment to the pleadings in the Frey Action, whereby Mr. Chatfield was substituted as the representative, changes nothing. The plaintiffs in the Frey Action comprise the same class regardless of who the named representative plaintiff is. The Drover Action plaintiffs chose to proceed first in Saskatchewan and, because that action has been certified, they remain plaintiffs.

There is no good reason that these same plaintiffs should not be called upon to litigate, in Saskatchewan, the action they commenced there in 2004. [ 30 ] The applicants argue that the Saskatchewan courts have spent almost nine years dealing with the same issues involving the same parties. They submit that duplicating the same claim in British Columbia will serve no legitimate purpose. Submissions of the Respondents [ 31 ] In contrast to the applicants’ submissions, Mr. Merchant’s submissions were rambling, repetitive and imprecise.

I have done my best to decipher them. [ 32 ] He submitted it must be plain and obvious that a proceeding is an abuse of process before a court can order it struck, relying on Lockyer-Kash v. Workers’ Compensation Board , 2013 BCSC 467 at para. 4 , a decision of this Court that considered the doctrine of abuse of process in a context other than parallel, multijurisdictional proceedings. [ 33 ] He argued that the Drover Action is not an abuse of process because it has been brought by an entirely different group of plaintiffs than those involved in the Frey Action.

He argued that the only plaintiff in the Frey Action is Mr. Chatfield. He suggested that, even though the amendment substituting Mr. Chatfield as the named representative plaintiff in the Frey Action is dated January 25, 2013, it took effect from August 9, 2004 when the Frey Action was commenced, relying on Olson v. Manufacturers Life Insurance Co. , 1999 ABQB 178 at para. 8 . He submitted that Mr. Chatfield has never been a plaintiff in the Drover Action and, conversely, that none of the plaintiffs in the Drover Action are now or, in law, have ever been part of the Frey Action.

He submitted that to find otherwise would be to “turn a blind eye on the present state of the two actions”. [ 34 ] He also submitted that, although the plaintiffs in the Drover Action have adjourned their application to amend the pleadings to substitute Mr. Lutterodt as the sole representative plaintiff, the court should consider the defendants’ applications as though Mr. Lutterodt is the sole named plaintiff. [ 35 ] The result, he submitted, is that the plaintiff in the Drover Action is Mr. Lutterodt and the plaintiff in the Frey Action is Mr. Chatfield.

Therefore, this is not a situation where the same plaintiffs have sued the same defendants over the same subject matter in two jurisdictions. [ 36 ] Mr. Merchant submitted that, regardless, the Drover Action should not be struck out or stayed because it serves at least two legitimate purposes:

a) first, if the Drover Action was struck or stayed, a large number of British Columbia residents will have no recourse to recover service activation fees paid after the certification date of February 13, 2008 in the Frey Action; and.

b) second, it is “reasonable surmise” that very few if any British Columbia residents will opt-in to the Frey Action. [ 37 ] He also submitted that there are numerous examples in Canada of substantially identical class actions having been commenced in multiple jurisdictions by the same law firm without any suggestion that they were an abuse of process.

As examples, he points to class action litigation concerning Baycol, credit card interest, Indian residential schools, Winners HomeSense, Lord Black and Hollinger, Agent Orange and others. [ 38 ] He submitted that his failure to plead unjust enrichment in the Drover Action is not fatal because he has pleaded sufficient facts necessary to support that cause of action. He relies on the decision of the Alberta Court of Appeal in Interclaim Holdings Limited v.

Down , 2000 ABCA 172 where the court stated, at para. 8: We are also of the opinion that the very lengthy statement of claim pleads facts which disclose other apparent causes of action. A statement of claim need not plead causes of action; it only need plead facts. The plaintiffs particularly emphasize conspiracy, and there is good evidence here that the means were unlawful, so that cause of action is arguable. They also point out that a creditor may bring an oppression action against a corporation, and many of the defendants are corporations. Unjust enrichment is pleaded.

In Canadian law it is broad, flexible and developing. See Waddams, The Law of Contracts , para 573-75 (3d ed. 1993). That text suggests that it might lie to recover money paid under illegal contracts. [ 39 ] Finally, Mr. Merchant took issue with the fact that these applications were heard in Vancouver rather than in Victoria where the Drover Action was commenced. He argued that if matters are moved from one registry to another without formal application and without justification, based simply on convenience, a plaintiff’s right to commence proceedings in the location of his/her choice becomes meaningless.

Analysis [40] I agree with Mr. Merchant that there is nothing wrong with multiple proceedings against the same defendants in relation to thesame subject matter. Indeed, there are numerous examples of multi-jurisdictional class actions in Canada, such as the Baycol class actionproceedings (Bouchanskaia v. Bayer Inc., 2003 BCSC 1306, Coleman v. Bayer Inc., [2004] O.T.C. 403, [2004] O.J. No. 1974 (S.C.),Walls v. Bayer Inc., 2005 MBQB 3 (leave to appeal refused 2005 MBCA 93, leave to appeal refused [2005] S.C.C.A.

No. 409), Pardy v.Bayer Inc., 2004 NLSCTD 72 (leave to appeal refused 2005 NLCA 20, leave to appeal refused [2005] S.C.C.A. No. 211), Dufour c.Bayer Inc., [2004] J.Q. No. 11125 (S.C.) and Lamb v. Bayer Inc., 2003 SKQB 442), the Agent Orange class action proceedings, whichnever succeeded in certification (Ward v. Canada (Attorney General), 2007 MBCA 123, Brooks v. Canada (Attorney General), 2009SKQB 509 and Ring v. Canada (Attorney General), 2010 NLCA 20), Indian residential schools (see, for instance, Rumley v. BritishColumbia, 2001 SCC 69, Sparvier v.

Canada (Attorney General), 2006 SKQB 533 (affirmed 2007 SKCA 37)), Baxter v. Canada(Attorney General) (2006), (ON SC), 83 O.R. (3d) 481 (S.C.)), the tainted blood cases (Killough v. Canadian RedCross Society, 2007 BCSC 836, McCarthy v. Canadian Red Cross Society (2001), 8 C.P.C. (5th) 349, [2001] O.T.C. 470 (S.C.), Parsonsv. Canadian Red Cross Society (1999), 40 C.P.C. (4th) 151, 103 O.T.C. 161 (S.C.) and Adrian v. Canada (Minister of Health), 2003ABQB 142) and the contaminated pet food claims (Joel v. Menu Foods Genpar Ltd., 2007 BCSC 1482 and Whiting v. Menu FoodsOperating Limited Partnership, [2007] O.J.

No. 3996, 53 C.P.C. (6th) 124 (S.C.)). However, none of those cases are examples of classactions by the same plaintiffs in two or more jurisdictions.

In each case, the defendants and subject matter was the same, but theplaintiffs were not. [41] It is well established that it is an abuse of process for the same plaintiffs to bring multiple proceedings against the samedefendant in relation to the same subject matter: Lacharity at para. 24; Duzan, at para. 36; Englund, at paras. 34 to 36. [42] The issue to be decided on this application is, therefore, whether the same plaintiffs are prosecuting both the Drover Action andthe Frey Action.

The issue is not whether the British Columbia court has territorial competence or whether a reasonable cause of actionhas been made out on the pleadings, issues that seemed to occupy a substantial portion of Mr. Merchant’s submissions. [43] In assessing whether multijurisdictional class actions are sufficiently similar to raise abuse of process concerns, the focus is onthe substance of the actions.

Narrow technicalities and artificial distinctions, such as differences between the representative plaintiffs areignored: Duzan, at para. 33. [44] Sometimes it is necessary to look below the surface of class actions proceedings to understand the reality of what is going on:Bear, para. 74.

In this case, even a superficial examination readily reveals that, on any practical view of the facts, the Frey Action andthe Drover Action were commenced and are being litigated by the same people. [45] As was observed by the Saskatchewan Court of Appeal in Bear, “MLG’s across-the-board involvement cannot be overlookedwhen determining if this sort of approach undermines the integrity of the adjudication process” (para. 77). [46] It is plain that Mr.

Merchant’s plan was to commence virtually identical class action proceedings in Saskatchewan, Manitoba,Ontario, Quebec, Alberta and British Columbia with the goal of certifying one national class in Saskatchewan. Once that goal had beenachieved, the plan was to obtain either a settlement or a judgment on behalf of the national class.

If that plan failed, one or more of thedormant actions in the other provinces would be resuscitated. [47] This is not a situation where class actions have been commenced in multiple jurisdictions and the courts and the defendants havebeen left to guess as to whether and when any particular action will be prosecuted.

It has been clear from the outset that MLG intends tolitigate the Frey Action only. [48] Had the British Columbia plaintiffs not been the same representative plaintiffs who commenced the Frey Action, and had theBritish Columbia defendants agreed to suspend the prosecution of the Drover Action pending the outcome of the Frey Action, Mr.Merchant’s strategy, at least in so far as the law of British Columbia is concerned, would have had merit. [49] It is obvious Mr.

Chatfield has been substituted for the Frey Action plaintiffs in an attempt to circumvent the argument nowbefore me that the same plaintiffs have commenced the same proceeding in multiple jurisdictions. [50] It is equally obvious that MLG’s plan was to substitute Mr. Lutterodt as the sole representative plaintiff in the Drover Actionfor the same reason. Inexplicably, MLG decided not to proceed with its application to substitute Mr. Lutterodt as plaintiff. Accordingly,the Drover Action plaintiffs remain as they have been since 2004 when this action was commenced. [51] Mr.

Merchant cites a decision of this Court, McMillan v. Canada Mortgage and Housing Corporation, 2007 BCSC 1475(affirmed 2008 BCCA 543, application for leave to appeal dismissed [2009] S.C.C.A. No. 49) at para. 18, for the proposition that courtsare to consider claims as they are or as they may be amended. He submits that I should therefore assume that Mr. Lutterodt has beensubstituted as the sole Drover Action plaintiff. I disagree. In McMillan, the issue was whether a cause of action has been disclosed inthe pleadings as they existed or as they may be amended.

Here, the issue is whether the same plaintiffs have commenced multi-jurisdictional proceedings. [52] As the Drover Action now stands, it serves no legitimate or proper purpose. [53] Mr. Merchant’s submission that a large number of British Columbians will have no recourse to recover service activation feespaid after February 13, 2008 ignores the fact that the defendants in the Frey Action have unconditionally agreed to Mr. Merchant’sproposed extension to the Frey Action class period. That is a full answer to any argument that a temporal gap exists. [54] Mr.

Merchant’s concern that very few British Columbians will opt-in to the Frey Action may well prove to be valid. However,it is also “reasonable surmise” that those British Columbians who do not opt-in to the Frey Action will have the opportunity toparticipate in the Ileman Action if that action is certified, which Mr. Merchant concedes is “on track”. It is noteworthy that the pleadings

in the Ileman Action set out causes of action that were not struck out by the Saskatchewan court in the Frey Action whereas the Drover Action only pleads causes of action that were struck out in Saskatchewan. It is also noteworthy that MLG does not intend to oppose certification of the Ileman Action. [ 55 ] While I agree with Mr. Merchant that it is not necessary to plead a cause of action by name, it is necessary at the very least to plead the material facts giving rise to the cause of action: Stoneman v. Denman Island Local Trust Committee , 2010 BCSC 636 , at para. 27 .

Reading the Drover Action statement of claim as generously as possible, I cannot discern a claim for unjust enrichment. While it is arguable that the pleading alleges enrichment by the defendants and corresponding depravation on the part of the plaintiffs, nowhere is there any allegation that there was no juristic reason for the enrichment, which is a necessary element of the cause of action. I doubt it was ever the plaintiffs’ intention to raise unjust enrichment as a cause of action in the Drover Action.

Had it been, MLG would have done so as it did in the Frey Action which it commenced less than three months earlier. [ 56 ] It is the responsibility of the Court to preserve the integrity of the administration of justice. In my view, and in the context of the law of abuse of process, it is preferable for the issues that have been raised and that might in the future to be raised to be resolved in the Frey Action. I wholeheartedly agree with the written submissions Mr. Merchant recently made to Saskatchewan Court of Appeal in the Frey Action.

They are worthy of repetition: This action is already certified as a multi-jurisdictional opt-in class action. Mr. Justice Gerein refused to amend the certification order to make the action a multijurisdictional opt-out action.

The practical result of his refusal to amend the order is that a multiplicity of other actions will be brought in courts across Canada and will be litigated for years to come simply to arrive at the very conclusion that has been nearly a decade in the making in Saskatchewan and has already been upheld to the highest court in Canada…What purpose or benefit to anyone would there be in pursuing a multitude of parallel actions, investing what will likely be millions of dollars of lawyers’ time and $100,000+ in further disbursements for each action , simply to obtain another certification in Alberta, and then another certification in Nova Scotia, and then…?

Even now, a copycat action filed in 2011 is being pursued in British Columbia, resulting in the likelihood of a carriage battle that will further delay and resolution of this case and only complicate resolution of this matter on a national basis. … Given the multitude of decisions made by Gerein J., all of which were reviewed by this Court, and that multiple decision making in multiple jurisdictions on the same issues will similarly be necessary, it is not a possibility, but a probability, that there will be disparate judicial dispositions bringing the administration of justice into disrepute. [Emphasis in the original.] [ 57 ] For the reasons set out above, I find that the Drover Action is an abuse of process.

The applications are allowed. [ 58 ] The Drover Action is stayed on the condition that it can be reactivated on the following conditions:

a) if the defendants in the Frey Action withdraw their offer to consent to the extension of the class period in that action; and

b) if the Ileman Action is discontinued. Costs [ 59 ] Until it is certified, an intended class proceeding is an ordinary action governed by the Rules . There is nothing in the class proceedings legislation precluding the recovery of costs from the plaintiff: Drover v. BCE Inc. , 2013 BCSC 50 , at para. 57 . [ 60 ] The applicants are entitled to costs at Scale B. Change of Venue [ 61 ] Finally, I wish to address Mr. Merchant’s objection to the venue of these applications. [ 62 ] This proceeding was assigned to me for judicial management and trial.

When these applications were filed, defendants’ counsel made enquiries as to my availability to hear them. They were advised by Supreme Court scheduling that I was available during the week of June 3, 2013 in Vancouver. Mr. Merchant responded that he was available at that time. He did not comment on the proposal that the hearing take place in Vancouver rather than in Victoria. In subsequent correspondence with defendants’ counsel and Supreme Court scheduling he raised an objection to the proposed change.

He wrote that “…we commenced the proceedings in Victoria because we have a Victoria office and Victoria lawyers”. After having reviewed this correspondence, I ordered that the applications would be heard in Vancouver unless Mr. Merchant had a compelling reason why the matter had to be heard in Victoria. I made my order pursuant to the Court’s inherent jurisdiction to control its own process. I took into account the fact that I am located in Vancouver, all defence counsel are located in Vancouver and Mr. Merchant is located in Saskatchewan.

It made no sense to me that all of us should travel to Victoria for the hearing. I was also of the view that Mr. Merchant, knowing that I was not scheduled to be sitting in Victoria, was objecting to the change in venue in an attempt to delay the hearing of the applications until the outcome of the appeal of my January 25, 2013 decision in this action was known. [ 63 ] Mr. Merchant did not respond to my invitation to provide a compelling reason for not changing the venue. “Weatherill J.”