2016 MBCA 32, 2016 MBCA 32

Citation: Hafichuk-Walkin et al v BCE Inc et al, Date: 20160314 2016 MBCA 32 Docket: AI14-30-08244 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : TERESE HAFICHUK-WALKIN, MARK ) BURK, VIVIAN MALAY, REUBEN ) SCHUCHER, STEVE DROVER, ) SHELLEY FRANK, JOHN GILLIS, ) APARTMENT LAUNDRY SERVICES ) S. N. Rosenbaum and LTD., MARK FREY, TRUDY BETTHEL, ) E. F. A. Merchant BRYAN PAWLACHUK, NATHALIE ) for the Appellants PAWALCHUK, D & S HOMES LTD., ) JENNIFER EVENSON, DANIELLE ) K. Podrebarac and FAVREAU, JEFF LEDDING, JESSICA ) A.

Melamud CORDINGLEY, ALISON WEINBERGER, ) for the Respondents TERRY PARKER, CAROL WALKER, ) Bell CINDY BELTON, LEIGH EDMUNDS, ) LAUREN TOMASHICH, STAN PAPPAS, ) K. E. Thomson AMANDA DONALD, RICHARD SKUCE, ) for the Respondents LANT LUTTERODT, JOHN DOE I, ) Rogers JOHN DOE II, JOHN DOE III, JOHN ) DOE IV, JANE DOE I, JANE DOE II, ) J. N. Grubb, Q.C. and JANE DOE III, JANE DOE IV, JOHN ) C. L. Bishoff DOE LTD. I, JOHN DOE LTD. II, JOHN ) for the Respondents DOE LTD. III, JOHN DOE LTD. IV, ) MTS JOHN DOE V, JOHN DOE VI, JOHN ) DOE VII, JANE DOE V, JANE DOE VI, ) Appeal heard: JANE DOE VII, JOHN DOE LTD.

V, ) March 9, 2015 JOHN DOE LTD. VI, JOHN DOE VII, ) JOHN DOE VIII, JOHN DOE IX, JANE ) Decision pronounced: DOE VIII, JANE DOE IX, JOHN DOE ) March 14, 2016 LTD. VIII, JOHN DOE LTD. IX, JOHN ) DOE X, JOHN DOE XI, JOHN DOE XII, ) JOHN DOE XIII, JANE DOE X, JANE ) DOE XI, JANE DOE XII, JANE ) DOE XIII, JOHN DOE LTD. X, JOHN ) DOE LTD. XI, JOHN DOE LTD. XII, ) JOHN DOE LTD. XIII, JOHN DOE XIV, ) JANE DOE XIV, JOHN DOE LTD. XIV, ) JOHN DOE XV, JOHN DOE XVI, JANE ) DOE XV, JOHN DOE LTD. XV, JOHN ) DOE XVII, JOHN DOE XVIII, JANE ) DOE XVI, JOHN DOE LTD. XVI, JOHN ) DOE XIX, JOHN DOE XX, JANE ) DOE XVII, JOHN DOE LTD.

XVII, JOHN ) DOE XXI, JOHN DOE XXII, JANE ) DOE XVIII, JOHN DOE LTD. XVIII, ) JOHN DOE XXIII, JOHN DOE XXIV, ) JANE DOE XIX, JOHN DOE LTD. XIX, ) JOHN DOE XXV, JANE DOE XX, JOHN ) DOE LTD. XX, JOHN DOE XXVI, ) JANE DOE XXI, JOHN DOE LTD. XXI, )

JOHN DOE XXVII, JANE DOE XXII, ) JOHN DOE LTD. XXII AND OTHER ) JOHN DOES & JANE DOES TO BE ) ADDED ) ) (Plaintiffs) Appellants ) ) - 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) Respondents ) On appeal from 2014 MBQB 175 , 308 ManR (2d) 215 MONNIN and MAINELLA JJA Introduction and Issues [ 1 ] In 2004 an action was commenced in Saskatchewan by the Merchant Law Group (the MLG) under The Class Actions Act , SS 2001, c C-12.01 (the Saskatchewan Act ) (the Frey/Chatfield action), claiming that various telecommunications providers had improperly been charging their wireless phone customers “system access fees” (SAF) each month.

The basic features of the claim are that it is alleged that the respondents misrepresented that the SAF were a regulatory fee that they were simply collecting and remitting to government. It is further alleged that this illegal practice went on for several years affecting customers across Canada and resulted in the respondents receiving, collectively, hundreds of millions of dollars.

Similar, if not identical, class actions were later brought by the MLG in eight other jurisdictions across Canada. [ 2 ] Class action legislation in Canada is not uniform as to how potential class members not resident in the jurisdiction where a class action is commenced become bound by the class proceeding. Some jurisdictions (British Columbia, Newfoundland and New Brunswick) follow the model that potential class members not resident in those jurisdictions must take action to “opt in” to the proceeding in order to be bound by it.

Other jurisdictions (Ontario, Quebec, Manitoba, Nova Scotia, Alberta and the Federal Court) follow the alternative approach that all potential class members, wherever resident, are bound by the class proceeding unless they take action to “opt out” of the proceeding.

Saskatchewan was an opt-in jurisdiction until 2008 and then the Saskatchewan Act was amended to make it an opt-out jurisdiction. [ 3 ] Prior to the 2008 amendment of the Saskatchewan Act , the Frey/Chatfield action was certified on a national opt-in basis for a claim of an unjust enrichment ( Frey et al v BCE Inc et al , 2006 SKQB 328 , 282 SaskR 1 , 2007 SKQB 328 , 312 SaskR 4 , 2008 SKQB 79 , 329 SaskR 42 , aff’d, 2011 SKCA 136 , 377 SaskR 156 , leave to appeal to SCC refused, [2012] SCCA No 42 (QL)).

Subsequent efforts by the MLG before the Saskatchewan courts to convert the Frey/Chatfield action into a national opt-out claim, based on the 2008 amendment of the Saskatchewan Act , and to commence a new SAF class action, have been unsuccessful ( Frey et al v BCE Inc et al , 2009 SKQB 165 , 334 SaskR 55 , dismissed for other reasons 2013 SKCA 26 , 409 SaskR 266 ; and Collins et al v BCE Inc et al , 2010 SKQB 74 , 352 SaskR 205 ). Currently, the Frey/Chatfield action is the only SAF class action commenced by the MLG that has been certified in Canada.

[ 4 ] In light of the certification of the Frey/Chatfield action in Saskatchewan, the respondents have ultimately been successful in having the SAF class actions commenced in Nova Scotia ( Gillis et al v BCE Inc et al , 2015 NSCA 32 , 358 NSR (2d) 39 ), and Alberta ( Turner v Bell Mobility Inc , 2016 ABCA 21 (QL) ) unconditionally stayed as an abuse of process.

The MLG’s SAF class action commenced in British Columbia (the Drover action) was dismissed against some defendants for improper service ( Drover v BCE Inc , 2013 BCSC 50 , 43 BCLR (5th) 146 (QL) , appeal dismissed for other reasons, 2015 BCCA 132 , 369 BCAC 231 ).

Later, the defendants to the Drover action, properly served with the claim, moved successfully to have it conditionally stayed as an abuse of process ( Drover v BCE Inc , 2013 BCSC 1341 , 54 BCLR (5th) 153 (QL) , appeal dismissed for other reasons, 2015 BCCA 132, 369 BCAC 231). [ 5 ] The original SAF class action commenced by the MLG in Alberta (the Pappas action) was dismissed for delay ( Pappas v BCE Inc , 2014 ABQB 49 (QL) ).

Nothing noteworthy has occurred in the SAF class actions commenced by the MLG in Ontario, Quebec, Newfoundland and New Brunswick. [ 6 ] In Manitoba, a SAF class action was commenced by the MLG pursuant to The Class Proceedings Act , CCSM c C130 (the Manitoba Act ), in 2004 (the Hafichuk-Walkin action). However, the Hafichuk-Walkin action laid dormant, in the pleadings stage, for almost a decade until the respondents successfully moved to have it unconditionally stayed by the motion judge as an abuse of process. [ 7 ] There are two issues in this appeal.

The first is whether the motion judge made a reversible error in deciding that the Hafichuk-Walkin action was an abuse of process. The second is whether there is reason to interfere with the motion judge’s choice of the remedy of an unconditional stay. [ 8 ] For the following reasons, we would dismiss the appeal.

Background Decision of the Motion Judge [ 9 ] The motion judge recognized that the issue of whether the filing of multiple class actions constituted an abuse of process required a contextual analysis. [ 10 ] The motion judge found that the Hafichuk-Walkin action was duplicative of the other SAF class actions filed outside of Manitoba. In his analysis he took into consideration the identical nature of the claims, the similarity of the plaintiffs and the fact that counsel in all nine jurisdictions were the same.

The motion judge also noted that there was no evidence to explain why the MLG sought certification in Saskatchewan instead of in one of the opt-out provinces such as Manitoba. He found that the MLG never intended to pursue the Hafichuk-Walkin action .

In his view, there was no evidence justifying the filing of multiple similar claims, especially where it was the MLG’s intention from the start to proceed to trial in Saskatchewan. [ 11 ] The motion judge also rejected the argument that Manitoba claimants would not be well served by the Frey/Chatfield action due to it being an opt-in claim and there being no indication that the order providing notice in Manitoba would be inadequate.

He determined that the fact that one class action was commenced in an opt-out province and the other was an opt-in province was not a valid reason to justify the conduct of class actions in more than one province, relying on Englund et al v Pfizer Canada Inc et al , 2007 SKCA 62 , 299 SaskR 298 .

In his view, there was no evidence to support the proposition that Saskatchewan courts would not fulfill their duty to provide for adequate notice and that the MLG had a professional responsibility to put forward a suitable plan for the giving of notice as well as appealing the plan ordered if that did not occur. [ 12 ] While acknowledging that, generally speaking, opt-out procedures provide better access to justice than opt-in procedures, given that the MLG was aware in 2004 that Manitoba was an opt-out jurisdiction, but chose nevertheless to pursue the Frey/Chatfield action, the motion judge concluded that the MLG could not now advance the position that opt-out jurisdictions are superior as a basis for opposing the request for a stay.

The motion judge concluded that the initial filing of the statement of claim and the manner in which the Hafichuk-Walkin action was ignored for a decade, while the Frey/Chatfield action was pursued, indicated that the continued existence of the Hafichuk-Walkin action served no proper purpose and, as such, was an abuse of process. He stated that, “In this court’s view, the commencement of nine actions by the same plaintiffs against the same defendants on the same matter is an abuse and cannot be supported in the circumstances of this case” (at para 29).

He decided to stay the Hafichuk-Walkin action unconditionally. The Gillis and Turner Decisions [ 13 ] When the motion judge rendered his decision, he did not have the benefit of the Nova Scotia Court of Appeal’s decision in Gillis and the Alberta Court of Appeal’s decision in Turner . When this Court heard this appeal on March 9, 2015, counsel advised that the Gillis appeal was under reserve, and that Rooke ACJ had reserved his decision at the trial level in Turner .

Counsel advised that they would provide this Court with copies of the decisions when rendered. [ 14 ] On March 18, 2015, counsel advised the Court in writing that Rooke ACJ had released his decision and a copy of the decision was provided ( Turner v Bell Mobility Inc , 2015 ABQB 169 , 18 Alta LR (6th) 217 (QL) ).

Counsel also advised that there was an intention to appeal the decision. [ 15 ] On April 9, 2015, counsel advised the Court, in writing, that the Gillis decision had been released by the Nova Scotia Court of Appeal and a copy of the decision was provided. [ 16 ] On June 8, 2015, the MLG filed an application for leave to appeal Gillis to SCC, [2015] SCCA No 225 (QL) (SCC No 36468). On June 30, 2015, Rothstein J granted an extension of time to the respondents to respond to the leave application until after the decisions in this appeal and in Turner .

A copy of Rothstein J’s order was provided to the Court by counsel. [ 17 ] On October 8, 2015, counsel advised the Court, in writing, that the Alberta Court of Appeal had allowed the appeal in

Turner from the bench on October 7, 2015, with reasons to follow. Those reasons were released on January 26, 2016, and counsel provided them to the Court ( 2016 ABCA 21 (QL) ). Counsel from the MLG advised in his letter to the Court that leave to appeal to the Supreme Court of Canada will be sought in Turner . [ 18 ] Completion of proceedings in Nova Scotia and Alberta have unfortunately delayed our decision in this matter. However, given the order of Rothstein J, there is no prejudice to the parties.

The decisions in Gillis and Turner are of assistance in our review of the motion judge’s decision. [ 19 ] In Gillis , the Nova Scotia Court of Appeal reversed the lower court decision and found that the SAF class action that the MLG commenced in 2004 in Nova Scotia (the Gillis action) was an abuse of process. The Court of Appeal ordered a permanent unconditional stay.

The Court of Appeal described the MLG’s conduct of the SAF class action litigation across Canada as akin to “planting legal cherry trees across the country” (at para 19) and went on to say that the MLG had only cared for the cherry tree in Saskatchewan, but now wanted to go “picking only the cherries they like in jurisdictions they have totally neglected for a decade” ( ibid ). [ 20 ] The Court of Appeal concluded that the record was clear that the MLG never had any intention to actually proceed with the Gillis action and, after it was filed, it was not prosecuted in a timely manner as required by sections 4(3) and 4(4) of the Class Proceedings Act , SNS 2007, c 28 (the Nova Scotia Act ). [ 21 ] The Court of Appeal also rejected the justification advanced by the MLG that multiple SAF class actions were necessary because of the negative consequences to access to justice arising from opt-in as opposed to opt-out jurisdictions.

The Court of Appeal called that issue a “neutral consideration” as to the issue of abuse of process (at para 51). The Court of Appeal went on to specifically disagree with the decision of Rooke ACJ in Turner that the opt-in/opt-out distinction trumped abuse of process principles. The Court of Appeal stated that such an approach is contrary to the jurisprudence and would have negative implications to the delivery of civil justice in Canada. The Court of Appeal stated (at para 58): This is a civil proceeding.

Turner does not ask or answer the question why the court and its resources should be more devoted to the financial self-interest of private litigants than they are themselves. If the “opt-out” regime of a particular province trumps bad behaviour in other Canadian jurisdictions, plaintiffs can act irresponsibly elsewhere with impunity, relying on the court in their home province to come to their rescue. Abuse of process becomes what plaintiffs do elsewhere, with the apparent approval of their “home court”.

Comity means nothing. [ 22 ] On the questions of the actions of counsel and the principle of comity, the Court of Appeal commented that the plaintiffs in the Gillis action knew in 2004 which jurisdictions in Canada were opt-in jurisdictions and which were opt-out jurisdictions for class action proceedings; they had the same counsel. The MLG chose Saskatchewan, an opt-in jurisdiction, as the place to seek certification.

The Saskatchewan courts rejected all but one cause of action, unjust enrichment, and refused to allow conversion of the the Frey/Chatfield action into a national opt-out class action despite several attempts of the MLG. The Court of Appeal concluded that comity required staying the Gillis action as, otherwise, the plaintiffs would be in a position to collaterally attack the previous decisions of the Saskatchewan courts.

As the Court of Appeal put it, “P arties must understand that they live with their choices” (at para 77). [ 23 ] Finally, the Court of Appeal commented that the MLG’s arguments that multiple SAF class actions were necessary to toll limitation periods and to preserve MLG’s carriage of the class actions were not legitimate purposes to justify continuance of the Gillis action. [ 24 ] In Turner , the Alberta Court of Appeal reversed the decision of Rooke ACJ and concluded that the SAF class action that the MLG commenced in Alberta after the Pappas action was dismissed (the Turner action), was an abuse of process.

The Court of Appeal ordered an unconditional stay. [ 25 ] The reversible errors identified in Turner echoed the comments made in Gillis , being that the decision of Rooke ACJ gave too much importance to the opt-in/opt-out distinction between jurisdictions and too little weight to the principle in comity. Rooke ACJ had found that the Turner action was an abuse of process, save in respect of Alberta residents who may never learn about the Frey/Chatfield action and act to opt-in to that litigation. The Court of Appeal decided such reasoning was inappropriate.

It stated the following about the Saskatchewan courts’ refusal to convert the certified SAF class action from an opt-in to an opt-out proceeding (at para 38): That clearly amounted to a judicial determination that to proceed on a national basis with the Frey/Chatfield action as an “opt-in” action would adequately serve the three objectives of class proceedings shared by legislation across Canada namely ensuring access to justice, achieving judicial economy and inducing behaviour modification. The chambers judge opined that the decision was not binding on Albertans. Perhaps so, in law. We need not say.

But be that as it may, it was a decision of a competent court (similar to the Nova Scotia court) that as a matter of fact there would be adequate representation of potential plaintiffs by continuing with an “opt-in” approach. The chambers judge suggested that he was not taking judicial notice of the implications for Albertans as to the difference between the forms of proceedings, but in actuality he did so. There was no evidence before him to so conclude. The issue largely turns on the form of Notice of Certification given in Alberta.

[ 26 ] The Court of Appeal agreed with the comments in Gillis that the MLG was using SAF litigation in other jurisdictions to collaterally attack negative decisions made in Saskatchewan. The Court of Appeal stated (at para 43): This is an obvious case of the MLG repeatedly using lawsuits in different jurisdictions (as, in effect, the law firm promised to do) to get around the rulings in the Saskatchewan Courts. This is an abuse not just of the courts of Alberta but is also a trammeling of the reputation of class proceedings legislation, which serves important social goals.

It also invites juridical dissonance in Canada. Position of the Parties [ 27 ] The appellants raised several grounds of appeal challenging the motion judge’s finding of abuse of process and his choice of remedy. Some grounds were abandoned at the hearing of the appeal. Other grounds justifying the Hafichuk-Walkin action on the basis of tolling of limitation periods or the possibility that the Frey/Chatfield action may be de-certified for an unstated reason, are unmeritorious. There are four aspects of the motion judge’s decision that do, however, require scrutiny.

(1) Parallel vs Duplicative Proceedings [ 28 ] The appellants say that the motion judge erred in appearing to accept that parallel proceedings are only appropriate if they are not filed by the same plaintiffs and in equating the MLG’s intention to proceed in Saskatchewan with an intention to proceed only in that jurisdiction. The appellants submit that parallel class actions in more than one jurisdiction are not an abuse of process, but, rather, the norm even where filed by one counsel.

They argue that residents of a province have a right to a class action in their own province and the protection of that action even if certification has been obtained in another province. [ 29 ] The respondents say that there is a difference between parallel proceedings and duplicative proceedings. The respondents accept that parallel class proceedings, which arise when similar claims are commenced by independent arm’s-length claimants in different jurisdictions, are permissible.

In contrast, duplicative multi-jurisdictional class actions, which arise when the same claim is commenced by the same plaintiffs in different provinces, are not. They argue that the MLG’s commencement of identical SAF class actions in nine jurisdictions is not an example of parallel proceedings and the motion judge did not err in coming to the conclusion that the proceedings were duplicative.

The respondents submit that this was a situation where duplicative class proceedings were commenced by the MLG, not for the legitimate prosecution of putative class members’ rights, but for other purposes which are abusive, such as tolling the limitation period, the MLG securing carriage of a national class action, or providing a mechanism for the MLG to relitigate in a second jurisdiction a prior unfavourable determination in the SAF litigation made in another jurisdiction.

(2) Ten-Year Delay in Hafichuk-Walkin Action [ 30 ] The appellants say that the motion judge placed too much emphasis on the ten-year delay in the prosecution of the Hafichuk-Walkin action. They submit that the respondents were aware that the appellants were pursuing the Frey/Chatfield action in Saskatchewan and that the other SAF actions would be held in abeyance until the Frey/Chatfield action advanced.

The appellants argue that the respondents are seeking to set up a scenario whereby plaintiffs in a class action would be inviting abuse of process motions whether they attempted to move all proceedings forward or moved in only one situation while letting all the others be “parked.” [ 31 ] The respondents say that the motion judge was correct in concluding that there was no intention on the part of the MLG to actively prosecute the Hafichuk-Walkin action.

They submit that his reliance on ten years of inactivity was justified and further that this conclusion was supported by representations by the MLG as early as 2004 that it intended to certify a single national class in Saskatchewan, which it did. The respondents point out that this was the same conclusion reached in Drover .

(3) Opt-In/Opt-Out Distinction [ 32 ] The appellants argue that the motion judge erred when he concluded there was no legitimate purpose to the Hafichuk- Walkin action. They say a legitimate purpose for the class action is guaranteeing that Manitoba residents can be members of an opt-out class which cannot occur in the Frey/Chatfield action given the wording of the Saskatchewan Act prior to 2008. The appellants submit that an opt-out jurisdiction provides more access to justice than an opt-in jurisdiction.

This prevents situations such as where potential class members are not adequately provided notice as occurred in Meeking v Cash Store Inc et al , 2013 MBCA 81 , 299 ManR (2d) 109 , leave to appeal to SCC granted, [2013] SCCA No 443 (QL) , subsequently abandoned July 28, 2015. [ 33 ] As to the opt-in/opt-out distinction, the respondents argue that the motion judge’s decision to follow the Saskatchewan court’s view that an opt-out SAF class action was not available under the Saskatchewan Act because of its wording prior to 2008, respected comity.

They say that, while an opt-out class may be beneficial, it is not essential to the effective adjudication of class members’ rights, such as to justify duplicative proceedings.

(4) Appropriate Remedy [ 34 ] As to the issue of substituting a different remedy than an unconditional stay for the abuse of process, the appellants argue that there are less drastic remedial options which were available, such as an interim stay or requiring or permitting them to move for certification in Manitoba. [ 35 ] The respondents submit that the decision to order an unconditional stay was appropriate in the circumstances and

should not be disturbed. They argue that because the Hafichuk-Walkin action is a duplicative proceeding that serves no proper purpose,it would have been inconsistent to order any of the alternative remedies suggested by the appellants. As well, they argue that thealternative remedies proposed would lead to a situation where there would be a possibility of relitigation in Manitoba of the same issuesalready decided by the Saskatchewan courts, thereby allowing the abuse to continue.

Standard of Review [36] Contrary to what is asserted by the appellants, in our view, the standard of review as to whether the circumstancessurrounding the Hafichuk-Walkin action are capable of constituting an abuse of process is not one of correctness. The application of alegal standard to facts is a question of mixed fact and law (see Housen v Nikolaisen, 2002 SCC 33 at para 37, [2002] 2 SCR 235).

Unlessit involves an error relating to an extricable principle of law, to which a standard of correctness would apply, the motion judge’s decisionas to abuse of process must be reviewed on a standard of palpable and overriding error (see Law Society of Manitoba v Mackinnon, 2014MBCA 28 at para 30, 303 ManR (2d) 223). [37] As to the question of the motion judge’s choice of the remedy of an unconditional stay, such a decision involves theexercise of discretion.

An appellate court will not interfere with a discretionary decision absent misdirection, or the decision being soclearly wrong as to amount to an injustice (see Elsom v Elsom, (SCC), [1989] 1 SCR 1367 at 1375; and Mackinnon atpara 31). Discussion [38] The doctrine of abuse of process is a well-recognized concept allowing courts to prevent an abuse of court proceedingsor judicial authority.

As stated by Goudge JA in Canam Enterprises Inc v Coles et al (2000), (ON CA), 139 OAC 1,dissenting but approved, 2002 SCC 63, [2002] 3 SCR 307, the applicable concepts can be explained as follows (at para 55): The doctrine of abuse of process engages 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 or 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 et al., [1990] 3 W.L.R. 347 (C.A.), at 358.

(1) Parallel vs Duplicative Proceedings [39] The integrity of the administration of justice requires finality in litigation. The evils that multiplicity of proceedingsgive rise to are duplicative litigation, potential inconsistent results, undue costs and inconsistent proceedings (see Danyluk v AinsworthTechnologies Inc, 2001 SCC 44 at para 18, [2001] 2 SCR 460). Accordingly, it is a fundamental principle underlying the civil justicesystem that a multiplicity of proceedings is to be avoided, if at all possible (see

section 94 of The Court of Queen’s Bench Act, CCSM cC280; and Kostic v Merrill Lynch Canada Inc, 2010 MBCA 81 at para 42, 258 ManR (2d) 125). [40] This proposition applies equally to class actions. In our federation, parallel multi-jurisdictional class actions arepermissible.

However, multi-jurisdictional class actions are abusive when they are duplicative and no legitimate purpose would beserved by allowing more than one class action to proceed on behalf of overlapping class members from one or more provinces (Englundat para 40; and Silver v Imax Corp (2009), (ON SC), 86 CPC (6th) 273 at para 133 (Ont Sup Ct), leave to appealdenied, 2011 ONSC 1035, 105 OR (3d) 212). [41] The context of each multi-jurisdictional class action will determine whether or not the degree of overlap between claimsgives rise to an abuse of process.

The comments of the Supreme Court of Canada in Western Canadian Shopping Centres Inc v Dutton,2001 SCC 46, [2001] 2 SCR 534, are instructive in analyzing such problems. It must be remembered that class actions play an importantrole in ensuring judicial economy, improving access to justice and guaranteeing accountability and behaviour modification in a complexeconomy where many people can be affected by one illegal practice repeated over and over. Multi-jurisdictional class actions should not,therefore, be too quickly snuffed out, particularly in the early stages of litigation.

As was said in Dutton (at para 51): The diversity of class actions makes it difficult to anticipate all of the procedural complexities that may arise. In the absence ofcomprehensive class-action legislation, courts must address procedural complexities on a case-by-case basis.

Courts should approachthese issues as they do the question of whether a class action should be allowed: in a flexible and liberal manner, seeking a balancebetween efficiency and fairness. [42] In Turon v Abbott Laboratories, Ltd, 2011 ONSC 4343, 340 DLR (4th) 510, leave to appeal denied, 2011 ONSC 4676,340 DLR (4th) 519, Strathy J (as he then was) accepted that legitimate purposes that may justify multi-jurisdictional class actions onbehalf of overlapping class members from one or more provinces may include, in appropriate circumstances (at para 13): [T]he lack of a national framework for the prosecution of class actions; issues concerning the recognition by other provinces of judgmentin a national class action; uncertainties concerning the availability of opt-in procedures for non-residents; potential juridical advantagesto proceeding in one province as opposed to another; and the fact that limitation periods may not be automatically tolled for non-residentsof the opt-in jurisdiction, such as British Columbia.

There is, as well, uncertainty about the constitutionality of national opt-out class

actions. [ 43 ] We have not been persuaded that the motion judge proceeded on the basis that MLG’s simultaneous filing of nine class actions regarding SAF was inherently or presumptively abusive. The motion judge’s reasons are more nuanced. The motion judge correctly cited the principle in Englund that similar class actions being commenced in multiple jurisdictions is not by itself necessarily an abuse of process. He also rightly decided the question of an abuse of process by “consider[ing] the entire context in which the actions have been brought” (at para 24; and see Bear et al v Merck Frosst Canada & Co , 2011 SKCA 152 at paras 41 , 74, 385 SaskR 76).

(2) Ten-Year Delay in Hafichuk-Walkin Action [ 44 ] To begin, we see no error in the motion judge having concerns as to the bona fides of the Hafichuk-Walkin action and the extreme delay in its prosecution.

Unreasonable delay in moving for certification or a lack of true intention to advance the class action proceeding as part of a multi-jurisdiction litigation strategy are each factors that may give rise to an abuse of process ( Turon at paras 18- 20). [ 45 ] The motion judge ultimately concluded that simultaneous filing of nine class actions regarding SAF was abusive “in the circumstances of this case” (at para 29) because the MLG’s stated intention was to advance a national class action in Saskatchewan, the MLG moved to have the Frey/Chatfield action certified in Saskatchewan and steps have been taken to take the Frey/Chatfield action to trial.

Indeed, the record is clear that MLG has never moved for certification of the Hafichuk-Walkin action despite the passage of over a decade since filing the claim. While the MLG has expressed an intention to seek certification in jurisdictions outside of Saskatchewan in response to motions by the respondents to stay or dismiss the SAF class actions as an abuse of process, the MLG has never taken any concrete steps to do so. [ 46 ] We see no palpable and overriding error in the motion judge’s finding that MLG “did not intend to pursue the Manitoba claim” (at para 29).

An alternative finding on the record would have been surprising. As noted in Gillis , the MLG’s intentions in the SAF class action litigation have been clear. For example, on October 29, 2004, Mr. Merchant wrote a letter to one of the telecommunications respondents which reads, in part: As you are aware, we have already served you with a copy of our Statement of Claim before the Court of Queen’s Bench of Saskatchewan concerning the referenced matter.

We have been contacted by counsel on your behalf in regard to the same Class Action and intend to bring an Application for certification in Saskatchewan in the near future. Please find enclosed our Statements of Claim concerning the same issues issued before the Courts in Ontario and Alberta, for service upon you. Please be aware that as we wish to avoid multiplicity of litigation concerning the same issues before various Courts, it is our intention to request that the Court in Saskatchewan certify one national Class Action to include all affected Canadian cellular customers in Canada in the Class.

Therefore, you should likely forward these materials to the counsel you have appointed to represent you before the Courts in Saskatchewan. [emphasis added] [ 47 ] It was also appropriate for the motion judge to take into account in his abuse of process analysis the lack of diligence in prosecuting the Hafichuk-Walkin action ( Turon at para 18). A class action cannot be “parked” in a jurisdiction indefinitely while a similar class action is advanced in another jurisdiction ( Turon at para 14).

Sections 2(2) and 2(3) of the Manitoba Act are similar to sections 4(3) and 4(4) of the Nova Scotia Act that were discussed in Gillis . The Manitoba Act also obligates a party commencing a class action to move the proceeding forward for a certification decision with reasonable dispatch. Sections 2(2) and 2(3) of the Manitoba Act provide: Motion for certification by plaintiff 2(2) A person who commences a proceeding under subsection (1) must make a motion to the court for an order (

a) certifying the proceeding as a class proceeding; and (

b) appointing a representative plaintiff. Timing of motion 2(3) A motion under subsection (2) must be made

(

a) within 90 days after the close of pleadings or the noting of a defendant in default; or (

b) with leave of the court, at any other time. In this case, there was no attempt by the MLG to comply with these provisions of the Manitoba Act in any way.

(3) Opt-in/Opt-out Distinction [48] On the question of the opt-in/opt-out distinction, the motion judge was alive to the juridical advantage that claimantsmay have in an opt-out class procedure as opposed to a opt-in class procedure. However, in his view, the record before him was suchthat he was satisfied that the Saskatchewan courts could protect the interests of non-residents in Manitoba.

He stated (at para 30): I reject the argument of counsel for the plaintiffs that Manitoba claimants are not well served by the Saskatchewan action because thecertification is of an opt in claim and there is no assurance that the order providing notice to Manitobans will be adequate to reach allManitoba customers who paid the disputed fees during the period in question. There is no evidence to support the proposition that theSaskatchewan court will not fulfill its duty to provide for adequate notice.

MLG has the professional responsibility to put forward asuitable plan for giving notice and a right of appeal if the Saskatchewan court does not meet the needs of Manitoba claimants. Generallyspeaking, opt out procedures provide better access to justice than opt in procedures. MLG was aware of the existence of opt outprocedures in Manitoba to protect Manitoba claimants, yet chose to pursue the Frey/Chatfield action in Saskatchewan. Ten years later,it is hard to credit this newly advanced position.

Moreover, now that it has been determined that the Gillis action should not be stayed,MLG may have the opportunity to buttress the position of Manitoba claimants, if needed. Further, the fact that opposite conclusionshave been reached on the abuse issue, gives a glimpse of the disparate findings likely to follow if MLG is permitted to proceedunchecked in nine separate actions. [emphasis added] [49] As previously noted, some provinces follow the opt-in procedure, others, such as Manitoba, follow the opt-outprocedure in class action proceedings.

We agree with the comments of the Alberta Court of Appeal in Turner that courts hearingmotions regarding a multi-jurisdiction class action should exercise caution in expressing views as to the policy choice a legislature inanother province makes in its laws when exercising its “property and civil rights” jurisdiction under section 92(13) of the ConstitutionAct, 1867 (UK), 30 & 31 Vict, c 3.

Indeed, in the spirit of mutual comity, some courts have gone so far as to say that “[technical] andartificial distinctions” such as the differences between opt-in and opt-out jurisdictions should be “ignored” in deciding an abuse ofprocess motion in a multi-jurisdiction class-action context (Duzan v GlaxoSmithKline Inc et al, 2011 SKQB 118 at para 33, 372 SaskR108). [50] In our view, what is ultimately the critical consideration about the relevance of the opt-in/opt-out distinction and thealleged potential unfairness to potential members of the class in the Frey/Chatfield action who are not resident in Saskatchewan is thatthere are reasonable safeguards in this case to guarantee that the principle of access to justice based on common-law principles and theprovisions of the Saskatchewan Act. [51] La Forest J explained in Morguard Investments Ltd v De Savoye, (SCC), [1990] 3 SCR 1077, that,because of the common market that exists in Canada, the structure of the Canadian judiciary and the high quality of the legal professionin Canada, “fair process is not an issue within the Canadian federation” (at p 1103).

LeBel J further discouraged Canadian courts fromfocussing on juridical advantages and disadvantages between provinces in Club Resorts Ltd v Van Breda, 2012 SCC 17, [2012] 1 SCR572, when he stated (at para 112): A further issue that does not arise in these appeals is whether it is legitimate to use this factor of loss of juridical advantage within theCanadian federation.

To use it too extensively in the forum non conveniens analysis might be inconsistent with the spirit and intent ofMorguard and Hunt [ (SCC), [1993] 4 SCR 289], as the Court sought in those cases to establish comity and a strongattitude of respect in relations between the different provinces, courts and legal systems of Canada. Differences should not be viewedinstinctively as signs of disadvantage or inferiority.

See also Kaynes v BP plc, 2014 ONCA 580 at para 37, 324 OAC 207, leave to appeal to SCC denied, [2014] SCCA No 452 (QL). [52] In Canada Post Corp v Lépine, 2009 SCC 16, [2009] 1 SCR 549, the Supreme Court of Canada recognized that

a dequate and timely notice is an indispensable part of a class proceeding to ensure individual rights are safeguarded ( see also Dutton at para 49 ) . Ensuring that adequate and timely notice is provided by the parties in the given circumstances is ultimately the responsibility of the court hearing the class proceeding and is part of that court’s duties to ensure order and fairness to non-residents ( Lépine at paras 42-43 ; and Meeking at paras 103, 114-15 ). [ 53 ] We do not believe providing adequate notice in a timely way to non-residents of a class action is an insurmountable obstacle.

Indeed, there is now a helpful Notice Protocol created by the Canadian Bar Association to assist lawyers and judges handling a multi-jurisdictional class action proceeding to meet the challenge of ensuring reasonable notice is given in such litigation (see The Canadian Bar Association, “Notice Protocol: Coordinating Notice(

s) to the Class(es) in Mulitjurisdictional Class Proceedings”, Resolution 11-03-A—Annex 3 (13 August 2011), online: The Canadian Bar Association, <www.cba.org/Our- Work/Resolutions/Resolutions/2011/Notice-Protocol-Coordinating​Notice(s)-to-the-Clas/11-03-A-Annex03.pdf>). [ 54 ] Moreover, under

Part IV of the Saskatchewan Act ( sections 21 - 26 ) there is mandatory judicial supervision of the question of notice in class proceedings in that jurisdiction.

Part IV of the Saskatchewan Act has various requirements as to the timing of notice, content and the form in which notice may be given. [ 55 ] We are satisfied that the motion judge was entitled to proceed, in the absence of cogent evidence to the contrary, on the basis that the Saskatchewan court hearing the Frey/Chatfield action will have the capacity and willingness to protect the interests of Manitoba residents by ensuring that they will receive adequate and timely notice to choose to opt into the Frey/Chatfield action, if they desire to do so. [ 56 ] In closing, as other courts before us have said, the SAF litigation commenced by the MLG is a classic example of when it is “ necessary and appropriate to look below the surface of class action proceedings in order to preserve the integrity of the administration of justice” ( Bear at para 74 ).

We agree with the conclusions of the Nova Scotia and Alberta Courts of Appeal in Gillis and Turner that it is obvious from the record that, currently, the MLG is maintaining the SAF class actions filed outside of Saskatchewan, despite the fact that Frey/Chatfield action is certified and going to trial, as nothing more than a form of insurance for the possibility of an unsuccessful result in that jurisdiction on the claim of unjust enrichment (see also Drover 2013 BCSC 1341 at para 44 ).

That is inappropriate and amounts to an abuse of process. [ 57 ] Subject to resolving choice of law issues, we see little in the way of a legitimate reason for what are, in substance, “carbon copy” class actions involving the same plaintiffs, defendants, lawyers and allegations being allowed to proceed in two different jurisdictions once a final certification of a class action has occurred in one jurisdiction and all appeals of the certification are exhausted, as is the case here.

To allow otherwise offends the principle of comity and exposes the parties and the courts to incurring the evils that a multiplicity of proceedings can give rise to in a multi-jurisdictional dispute.

(4) Appropriate Remedy [ 58 ] When a class action lawsuit is found to be an abuse of process because it serves no legitimate purpose, absent some compelling reason, the typical remedy is an unconditional stay that has the effect of permanently ending the action ( Duzan at para 43 ; and Fantl v Transamerica Life Canada , 2009 ONCA 377 at paras 75-78 , 249 OAC 58 ). [ 59 ] The appellants do not argue that the motion judge misdirected himself on his choice of remedy. Rather, they say it was unjust not to impose a less drastic remedy. That argument is unconvincing.

The issue on appeal is not whether alternative remedies could have been ordered. The issue is whether there is a basis, given the standard of review, to disturb the unconditional stay that was ordered. [ 60 ] We are not convinced that an unconditional stay is a clear injustice in the circumstances. It fully addresses the evils arising from a multiplicity of duplicitous proceedings. Importantly, the Frey/Chatfield action is certified, appeal rights regarding that certification order are now exhausted and the matter is proceeding to trial in Saskatchewan.

The class members, including those residing in Manitoba, have a legal proceeding in Saskatchewan where their SAF claims can be adjudicated. Justice does not require an identical proceeding in Manitoba.

In these circumstances, an unconditional stay to end an unnecessary duplicitous proceeding properly advances the principles of judicial economy, consistency, finality and the integrity of the administration of justice which are core values at the roots of the abuse of process doctrine ( Toronto (City) v CUPE, Local 79 , 2003 SCC 63 at paras 30 , 51, [2003] 3 SCR 77). [ 61 ] In conclusion, we see no reason that requires the Hafichuk-Walkin action to hibernate further. Disposition [ 62 ] We would dismiss the appeal with costs in favour of the respondents. JA JA I agree: JA