Herold v Wassermann, 2022 SKCA 103

Court of Appeal for Saskatchewan Docket: CACV3871 Citation: Herold v Wassermann , 2022 SKCA 103 Date: 2022-09-20 Between: Adam Herold by his administrator ad litem Russell Herold, Russell Herold, Raelene Herold, Jaxon Joseph by his administrator ad litem Chris Joseph, Chris Joseph, Andrea Joseph, Logan Hunter by his administrator ad litem Shauna Nordstrom, Shauna Nordstrom, Peter Snaterse, Jacob Leicht by his administrator ad litem Kurt Leicht, Celeste Leicht, Mark Cross by his administrator ad litem Brad Cross, Brad Cross and Marilyn Cross Appellants (Respondents) And Jacob Wassermann, Carol Brons and Lyle Brons, the Government of Saskatchewan as represented by the Minister of Highways and Infrastructure, and His Majesty the King as represented by the Attorney General for Saskatchewan, the Government of Alberta as represented by the Ministry of Transport, His Majesty the King as represented by the Attorney General for Alberta, His Majesty the King of Canada as represented by the Attorney General of Canada, Jaskirat Singh Sidhu, Adesh Deol Trucking Ltd., Sukhmander Singh, Answer Trailer Rentals & Leasing Ltd., Charlie’s Charters Ltd., NFI Group Inc. operating as Motor Coach Industries, Premier Horticulture Ltee/Premier Horticulture Ltd. and Saskatchewan Government Insurance Respondents (Applicants) Before: Caldwell, Whitmore and Leurer JJ.A.

Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Whitmore On appeal from: QBG 789 of 2020, Regina; and 2021 SKQB 204 , Regina Appeal heard: February 28, 2022 Counsel: Kevin Mellor and Sharon Fox for the Appellants John Rice, K.C. and Eileen Patel for the Respondents, Jacob Wassermann, Carol Brons and Lyle Brons Michael Morris K.C. for the Respondent, the Government of Saskatchewan No one appearing for His Majesty the King as represented by the Attorney General for Saskatchewan, the Government of Alberta as represented by the Ministry of Transport, His Majesty the King as represented by the Attorney General for Alberta, His Majesty the King of Canada as represented by the Attorney General of Canada, Jaskirat Singh Sidhu, Adesh Deol Trucking Ltd., Sukhmander Singh, Answer Trailer Rentals & Leasing Ltd., Charlie’s Charters Ltd., NFI Group Inc. operating as Motor Coach Industries, Premier Horticulture Ltee/Premier Horticulture Ltd. and Saskatchewan Government Insurance Leurer J.A.

I. INTRODUCTION [ 1 ] The issue in this appeal is whether a group of plaintiffs should be prevented from prosecuting a lawsuit because others seek to advance a similar claim as a class action pursuant to The Class Actions Act , SS 2001, c C-12.01 [ CAA ]. [ 2 ] The appeal arises out of the tragic April 6, 2018, bus accident involving the Humboldt Broncos hockey team.

That accident took the lives of 16 people, physically injured 13 others and deeply affected many more. [ 3 ] Family members of five individuals who perished in the crash [Herold Plaintiffs], led by Russell Herold, the father and administrator ad litem of Adam Herold, have commenced a lawsuit [Herold Action].

They sue the driver of the tractor-trailer unit and several other defendants for damages. [ 4 ] Meanwhile, another group [Brons Plaintiffs], consisting of Lyle Brons and Carol Brons, the parents of Dayna Brons, who died in the crash, and Jacob Wassermann, one of the surviving players, have commenced a separate action [Brons Action]. The Brons Plaintiffs seek to certify the Brons Action as a class action. [ 5 ] The Herold Plaintiffs do not want to participate in the proposed class action.

In part, they take this position because they feel that its breadth, and the class actions procedure generally, will interfere with their ability to resolve their own claims. However, a Court of Queen’s Bench judge in Chambers determined that the Herold Action must be stayed until the outcome of the Brons Action’s certification application is known: Wassermann v Saskatchewan (Highways and Infrastructure) , 2021 SKQB 204 , 16 CCLI (6th) 63 [ Chambers Decision ].

Key to the Chambers judge’s reasons for making this order was his conclusion that permitting the Herold Action to proceed would countenance a multiplicity of proceedings, which could imperil the integrity of the judicial process and undermine the policy objectives sought to be advanced by class actions. [ 6 ] I have concluded that the Chambers judge erred in staying the Herold Action. The Chambers Decision frustrates the right of the Herold Plaintiffs to determine how they wish to prosecute their lawsuit.

While the law discourages a multiplicity of legal proceedings, they are not in all cases prohibited, nor in all cases are they contrary to the policy objectives of the CAA . Moreover, there are other means, short of a stay of the Herold Action, to manage any risks to the integrity of the judicial system if the two actions proceed in tandem.

[ 7 ] All of this means that the Herold Action should be allowed to proceed, subject to the possibility of future judicial direction coordinating its prosecution contemporaneously with the Brons Action. My further reasons follow. II. BACKGROUND A. The actions [ 8 ] On April 6, 2018, a bus carrying the Broncos team and supporters collided with a tractor-trailer unit driven by Jaskirat Singh Sidhu at a highway intersection near Armley, Saskatchewan. There were 29 people on the bus. Sixteen of them died. The remaining 13 suffered grievous injuries. [ 9 ] The accident has spawned at least 17 lawsuits.

Two of these claims lie at the heart of this appeal. [ 10 ] The Herold Action was commenced on July 9, 2018. Its statement of claim was amended on May 8, 2020. The amended statement of claim alleges negligence on the part of Mr. Sidhu, Adesh Deol Trucking Ltd. [Adesh], Motor Coach Industries Limited and Motor Coach Industries, Inc. [MCI], and the Government of Saskatchewan (Ministry of Highways and Infrastructure) [Saskatchewan]. [ 11 ] The Brons Action was commenced on April 3, 2020, and amended on December 2, 2020. Nine more defendants, in addition to Mr. Sidhu, Adesh, MCI and Saskatchewan, are named in it.

In their statement of claim, the Brons Plaintiffs express their intention to represent all persons who were on the bus, all family members of persons on the bus entitled to bring claims pursuant to The Fatal Accidents Act , RSS 1978, c F-11 , all persons who attempted to assist at the crash site and all first responders and medical personnel who attended at the accident scene. [ 12 ] On April 22, 2020, Saskatchewan brought an application in the Herold Action for an order striking it as a defendant.

The Brons Plaintiffs became concerned that issues raised in Saskatchewan’s application were live ones in their certification request. [ 13 ] On January 29, 2021, the Brons Plaintiffs applied for an order that the Herold Action be stayed until the certification of the Brons Action, and that they “shall be at liberty to apply for a continuation of the Order staying the Herold Action if certification is granted in the Brons Action”. B. The Chambers Decision [ 14 ] The Chambers judge reviewed the procedural history and the allegations made in the two actions.

He then identified two issues as requiring his attention: [24] First, what is the applicable standard for staying an individual action prior to the certification of a proposed class action? [25] Second, applying this standard should the Herold Action be stayed pending a decision on the certification application in the Brons Action?

If so, what, if any, terms should attach to this temporary stay? [ 15 ] In answer to the first of these questions, the Chambers judge identified in Hollinger International Inc. v Hollinger Inc. (2004), 11 CPC (6th) 245 (WL) (Ont Sup Ct) [ Hollinger ] , and cases that have followed it, four factors that governed the determination of whether the Herold Action should be temporarily stayed pending the outcome of the application to certify the Brons Action as a class action. These were whether: (

a) there is substantial overlap of issues in the two proceedings; (

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

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

d) the temporary stay will result in an injustice to the party resisting the stay.

He also observed that a “lower threshold applies when a temporary, as opposed to a permanent, stay of an individual action is sought” ( Chambers Decision at para 53), and that “a temporary stay of an individual civil action, in [a] circumstance where a class action is pending, is appropriate if the defendants to the two actions ‘cannot be in two places at once’” (at para 54). [ 16 ] In connection with the first of the four Hollinger factors, the Chambers judge found it to be “obvious that not only is there significant and substantial overlap between the Herold Action and the Brons Action, the two actions are virtually identical” (at para 56).

In relation to the second factor, he found that, as the actions had arisen out of the same event, the two cases share the same factual background. Concerning the third factor, the Chambers judge determined that a temporary stay of proceedings would prevent unnecessary and costly duplication of judicial and legal resources. In this context, he observed that the Herold Plaintiffs were all putative plaintiffs in the Brons Action.

He also noted that, apart from the Herold Plaintiffs, the plaintiffs in several of the other actions arising from the accident had agreed to hold their actions in abeyance pending the certification application in the Brons Action.

The Chambers judge concluded that “all the actions related to the class action involve the same plaintiffs and seek the same relief against the same cast of defendants” and, as such, permitting individual actions to proceed pending a determination on certification of the Brons Action would be “tantamount to … countenancing multiple proceedings which could imperil the integrity of the judicial process” and “undermine the policy objectives sought to be advanced by class actions” (at para 64). [ 17 ] With these determinations in hand, the Chambers judge turned to consider the fourth factor he had identified.

In connection with it, the Chambers judge found that a temporary stay would not result in an injustice to the Herold Plaintiffs. He considered three types of prejudice potentially suffered by the Herold Plaintiffs to be relevant to the injustice question: (

a) legal process prejudice; (

b) financial prejudice; and (

c) psychological harm. [ 18 ] The Chambers judge concluded that there would be no legal process prejudice to the Herold Plaintiffs. In this regard, he reasoned that, even though the Herold Plaintiffs had deposed that they intended to opt out of any class proceeding arising from the Brons Action, the question to be determined was whether there were “good reasons to allow the Herold Action to proceed in tandem” with the Brons Action (at para 71). The Chambers judge held that any concerns about legal process prejudice resulting from a stay could be alleviated by conditions that would allow the Herold Plaintiffs to participate in questioning of key parties or witnesses, such as Mr. Sidhu

(who was at risk of being deported) and John Stevenson (an RCMP officer who investigated a 1997 crash at the same location and whohad warned the government of the dangers of the intersection, who was reported to be in ill health). The Chambers judge also rejected thenotion that the Herold Action was ready to proceed to trial and could be completed before the Brons Action certification hearing andsubsequent appeals were concluded.

In that respect, he said “I believe the [Herold Plaintiffs] are overly optimistic about their ability toprosecute their lawsuit as expeditiously as they assert” (at para 74), noting that pleadings in the Herold Action had not yet closed,mandatory mediation had not yet taken place and questioning had not yet occurred. [19] As to the question of financial prejudice, the Chambers judge concluded that, although the Herold Plaintiffs were seekingdamages, that was “not the primary motivation for their lawsuit” (at para 83).

He also observed that financial need on the part of theHerold Plaintiffs did “not appear to be an immediate concern” (at para 84) and that their assertion of financial prejudice was rooted in thefear that the costs they had already incurred to pursue their action would be thrown away if the matter were delayed pending a certificationdetermination in the Brons Action.

However, he found that those expenses would not be wasted, because the fruits of their labour wouldstill be available to them should they opt out of the class action in the future. [20] Finally, the Chambers judge considered whether, and to what extent, the Herold Plaintiffs would suffer psychological harm if atemporary stay were to be imposed. He referred to affidavit evidence in which several of the Herold Plaintiffs had stated that any delayoccasioned by a temporary stay would cause them “considerable emotional and psychological distress” (at para 89).

However, he couldnot “accept that the [Brons Plaintiffs] and other putative class members do not also experience emotions of this kind” (at para 92). Heconcluded that he could “accept that the [Herold Plaintiffs] will suffer some emotional hardship if the Herold Action is stayedtemporarily”, but at the same time, “proceeding with this action will also cause stress and anxiety to them, as these are typically strongemotions which the litigation process induces in most litigants” (at para 95). [21] Having made these findings, the Chambers judge ordered that: (

a) The Herold Action be temporarily stayed until (

i) the certification of the Brons Action and delivery of opt-out notices by theHerold Action plaintiffs, or (ii) the application seeking certification of the Brons Action is dismissed; and (

b) While the temporary stay of the Herold Action is in place, counsel for the Herold Plaintiffs may participate in all pre-certification processes which may be relevant to the Herold Action. III. ISSUES [22] The Herold Plaintiffs appeal from the Chambers Decision. They also allege that the Chambers judge erred by admitting certainevidence tendered by the Brons Plaintiffs. As I will explain, it is necessary to consider only two of the many issues they have raised,which I restate as follows: (

a) Did the Chambers judge apply the correct principles when considering whether to grant a temporary stay of the HeroldAction? (

b) Considering the correct principles, should the Herold Action have been temporarily stayed? IV. ANALYSIS A. Did the Chambers judge apply the correct principles when consideringwhether to grant a temporary stay of the Herold Action? 1.

Standard of review [23] A decision to grant or refuse a stay of proceedings involves the exercise of judicial discretion: Onion Lake Cree Nation v Stick,2018 SKCA 20 at para 47, [2018] 5 WWR 111 [Onion Lake Cree Nation]; CE Design Ltd. v Saskatchewan Mutual Insurance Company,2021 SKCA 14 at para 91, 455 DLR (4th) 417; Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc.,2011 SKCA 120 at paras 83–85, 341 DLR (4th) 407 [Mosaic]; Manitoba (Attorney General) v Metropolitan Stores Ltd., (SCC), [1987] 1 SCR 110 at 155–156 [Metropolitan Stores]. [24] One basis for appellate intervention in a discretionary decision is “where the judge failed to correctly identify the legal criteriawhich governed the exercise of their discretion or misapplied those criteria, thereby committing an error of law.

Such errors may include afailure to give any or sufficient weight to a relevant consideration” (Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161. See also:Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002] 4 WWR 119; and British Columbia (Minister of Forests) v Okanagan Indian Band,2003 SCC 71 at para 43, [2003] 3 SCR 371). [25] As I will explain, in my respectful view, the Chambers judge erred in law by failing to identify the correct principles whendetermining whether to grant a temporary stay of the Herold Action. 2.

Jurisdiction to grant the Brons Plaintiffs a stay of the Herold Action [26] The Brons Plaintiffs made their request for an order staying the Herold Action in a notice of application brought in their ownaction. In doing so, they invoked Rule 1-5 of The Queen’s Bench Rules and ss. 29 and 37 of The Queen’s Bench Act, 1998, SS 1998,c Q-1.01 [QB Act]. The Chambers judge found that, of these provisions, “ss. 29 and 37 of the QB Act are the most pertinent” (ChambersDecision at para 34).

[27] Although not raised by any party to this appeal, there is a question as to whether ss. 29(1) or 37(1) of the QB Act provide thejurisdiction for the Chambers judge to make the order that he did. In this regard, the introductory words of s. 29(1) invite the question as towhether the authority it extends is limited to granting remedies “to the parties to an action”. However, the Brons Plaintiffs are not a partyto the Herold Action and, at the moment at least, the Herold Plaintiffs are not parties to the Brons Action.

Section 37(1) of the QB Actprovides that nothing in that statute “prevents a judge from directing a stay of proceedings in any action or matter before the court if thejudge considers it appropriate”. This language recognizes the existence of the authority to grant a stay but may be read not as conferring it. [28] What is clearer is that the authority for the Chambers judge to have ordered a stay of the Herold Action is not conferred by theCAA.

Section 15 of the CAA provides that the court “may, at any time, stay or sever any action related to the class action on any terms thecourt considers appropriate”. However, s. 2 of the CAA defines a “class action” to mean “an action certified as a class action” pursuant tothat statute. As the Chambers judge correctly explained, because the Brons Action has not been certified, “the power to stay any relatedaction pursuant to [s. 15 of] the CAA cannot operate at this time” (Chambers Decision at para 28). [29] Not all class actions legislation is limited in this way.

For example, s. 13 of the Class Proceedings Act, 1992, SO 1992, c 6[Ontario CPA], and s. 14 of the Class Proceedings Act, SA 2003, c C-16.5, allow the Ontario and Alberta courts, respectively, to stay anyproceeding related to the proceeding under those statutes. These provisions have been interpreted to empower those provinces’ courts togrant stays of proceedings that are merely related to proposed class actions.

See, for example only, Vaeth v North American PalladiumLtd., 2016 ONSC 5015 [Vaeth], and Hamm v Canada (Attorney General), 2021 ABCA 329 at para 12, [2021] 12 WWR 703, leave toappeal to SCC refused, [Hamm CA].

That said, and as I will explain, this jurisdiction has generally been exercised in afashion that broadly respects the right of persons to prosecute their individual claims and limits those rights only for compelling reasons,and then only to the extent necessary to protect the interests that compete against those individual rights. [30] Although there is a question as to whether the Chambers judge erred when he identified ss. 29(1) and 37(1) of the QB Act as thesource of his power to order a stay in this case, I am confident that he had such authority as an adjunct to the authority of the Court ofKing’s Bench to control its own processes, if not elsewhere.

As has been observed by Richards J.A. (as he then was), superior courts ofjustice “have long exercised an inherent jurisdiction to control their proceedings and process so as to prevent interference with the properadministration of justice” (Boehringer Ingelheim (Canada) Ltd. v Englund, 2007 SKCA 62 at para 33, 284 DLR (4th) 94 [BoehringerIngelheim]).

In Onion Lake Cree Nation, Ryan-Froslie J.A. stated, with reference to Boehringer Ingelheim, that the Court of Queen’sBench’s inherent jurisdiction to control its own processes “includes the power to direct a stay of proceedings where appropriate” (at para46). [31] Accordingly, although the Chambers judge may have misspoken when he identified ss. 29(1) and 37(1) of the QB Act asapplying (I do not decide that point), such authority exists pursuant to the inherent jurisdiction of the Court of King’s Bench to control itsown processes, if not also elsewhere. Indeed, this was recognized by the Chambers judge.

In this regard, at one point in his reasons, heconcluded, with specific reference to Boehringer Ingelheim, that s. 37 “particularly, codifies what is already the inherent jurisdiction of asuperior court to control its own process” (Chambers Decision at para 35). [32] All of this satisfies me that the Chambers judge did not fall into error because of the possibility that he misidentified the sourceof the jurisdiction to grant a stay order.

For the moment, I have offered the comments on this jurisdictional issue to avoid any impressionthat these reasons decide that ss. 29(1) or 37(1) of the QB Act have direct application where a person seeks a stay of an action to whichthey are not a party. I leave that issue to be determined in the context of a case where it matters to its outcome. 3.

First error in principle: failure to recognize the Herold Plaintiffs’ extant right to proceduralautonomy [33] In the present case, the principal consideration that the Chambers judge accounted for when determining to order a stay of theHerold Action was his conclusion that its immediate prosecution would frustrate the legislative and judicial policy of discouraging amultiplicity of legal proceedings. In this regard, after framing the two issues he was called upon to decide, the Chambers judgeimmediately referred to s. 29 of the QB Act.

Continuing with his analysis, while the Chambers judge found s. 15 of the CAA to beinapplicable because the Brons Action had not yet been certified, he noted that other provinces’ class proceedings legislation would allowfor a stay in this context. He reasoned that, although Saskatchewan’s legislation operates differently, “this reality does not detract in anyway from the relevance of the analysis undertaken by [the courts of other provinces] pursuant to their respective provincial class actionstatutes” (at para 31).

After a review of case law pertaining to the staying of civil proceedings generally, including Boehringer Ingelheimand Onion Lake Cree Nation, the Chambers judge concluded that “the question [as to whether the Herold Action should be stayed]devolves to whether it is in the interests of justice viewed through the lens of finality, consistency and judicial economy to permit theseduplicative actions to proceed in tandem” (at para 43). [34] The idea that the immediate prosecution of the Herold Action would frustrate the legislative and judicial policy against amultiplicity of legal proceedings is also evident from the Chambers judge’s development of “the relevant criteria to be applied whenassessing whether in these circumstances the Herold Action should be temporarily stayed” (at para 45).

He stated that it was “important toemphasize that one of the fundamental objectives sought to be achieved by rules of civil procedure, not to mention s. 29 of the QB Act, isthe avoidance of [a] multiplicity of proceedings” (at para 46). He then explained why a multiplicity of legal proceedings is to bediscouraged by quoting the following passage from Vaeth: [37] Civil procedure encourages the avoidance of a multiplicity of proceedings.

Multiple proceedings that litigate the same issue areobviously inefficient, a waste of scarce judicial resources, and the cause of expense and delay in the administration of justice.

Andmultiple proceedings that litigate the same issues entail the possibility of inconsistent results that may be embarrassing to theadministration of justice and instill sentiments of unfairness because similarly situated parties experience and perceive different outcomes.Multiple proceedings against the same defendant over the same issue may compromise the ability of the defendant to defend itself becauseit must defend itself over and over again, and while this circumstance may explain why the outcomes of virtually identical cases can becontradictory, it is not fair to the defendants. [35] Finally, the Chambers judge linked all of this to the CAA, pursuant to which the Brons Action was commenced.

He noted that

the “rationales underpinning the CAA and other class proceedings legislation are now well-established and include access to justice,judicial economy, behaviour modification and procedural fairness” (at para 47).

He then continued: [48] A class action proceeding principally through the mechanism of a common issues trial is especially well-suited to enable courtsand parties to resolve or to advance myriad individual claims in a single comprehensive proceeding which will yield consistent results.Such a proceeding not only allows both plaintiffs and defendants the opportunity to present their respective claims or defences in asefficient a manner as possible, it facilitates the optimal use of judicial resources.

See: Vaeth at para 41; Hamm [v Canada (AttorneyGeneral), 2020 ABQB 765, [2021] 5 WWR 392] at para 43; and [Singh v RBC Insurance Agency Ltd., 2020 ONSC 5368] at para 131. [49] At the same time, class proceedings statutes such as the CAA are not intended to prohibit related individual actions fromproceeding in tandem with a class action.

Typically, this is where the opt-out procedure provided for in s. 18 of the CAA becomes critical.This process allows individual plaintiffs post-certification to choose between participating in the class action or maintaining their litigationautonomy and pursuing the defendants in a separate civil lawsuit.

See, for example: Vaeth at paras 44-45; Hamm at paras 44-45; [Carter vLifeLabs, 2020 ONSC 7340, 60 CPC (8th) 283] at para 13; Durling v Sunrise Propane Energy Group Inc., 2011 ONSC 266 at paras 17-20; [Dumoulin v Ontario (Ontario Realty Corp.), (Ont Sup Ct)] at paras 8-10, and Abdulrahim v Air France, 2010ONSC 5542 at para 66. [36] I certainly can find no error in the Chambers judge’s identification of the important policy objectives served by the CAA. Theenactment of modern class proceedings legislation represents one of the most significant reforms of civil procedure of the last half-century.

However, because the effect of a class action certification is to turn over control of rights of action to others, an essentialqualification to all forms of this legislation, in this country at least, is the preservation of the autonomy of claimants to decide whether toparticipate in such group proceedings. [37] The right of non-participation in a class action means not just the right to stand on the sidelines while a class action, orproposed class action, proceeds.

It also includes the right to actively prosecute a claim through an individual proceeding or in joinder withothers, absent a compelling reason to be deprived of this right.

This point was made by Cullity J. in Dumoulin v Ontario, at para 8 (Ont Sup Ct) [Dumoulin], when he stated that the Ontario CPA “was not intended to prevent, or impede, actions byindividuals for no other reason than they are, or may be, members of a putative class in an action commenced by another party”. [38] In Abdulrahim v Air France, 2010 ONSC 5542 at para 66, 99 CPC (6th) 266, Strathy J. (as he then was) referred to Dumoulinand several other authorities before stating that, by allowing freedom of choice to litigants, class actions legislation “clearly contemplatesthat there may be a multiplicity of proceedings arising from the same event or transaction”.

In Workman Optometry v Aviva Insurance,2021 ONSC 3843 at para 9, 13 CCLI (6th) 301 [Workman Optometry], Belobaba J. made this point with reference to the important policyobjective of promoting access to justice: [9] … If a plaintiff has good reason to reject the class proceeding and pursue an individual claim, then as a general proposition theyshould have every right to do so. The CPA was designed to enhance access to justice. It would be ironic in the extreme if this importantprocedural vehicle delayed such access for legitimate individual litigants.

See also: Northfield Capital Corp. v Aurelian Resources Inc. (2007), (ON SC), 84 OR (3d) 748 at paras 38–​39 (Sup Ct)[Northfield Capital], and Matheson v Wood World Markets/Marches M, 2011 NSSC 85; and Vaeth at paras 44–46. [39] In this case, the Chambers judge correctly identified that the Herold Plaintiffs had a right not to participate in the Brons Actionif it were to be certified as a class action.

However, in paragraph 49 of the Chambers Decision, quoted earlier in these reasons, he seems tohave associated this right as one that arises when opt-out notices are delivered after the certification or at the point when certification isrefused. The Chambers judge reiterated this idea later in his reasons when he stated that “as a matter of law, the opportunity for a putativeplaintiff to opt out of a class action only crystallizes after certification, not before” (at para 69). However, until the grant of an ordercertifying a class action, there is nothing to opt out of.

Unless the Brons Action is certified, it is simply “an action with ambition” (RedSeal Vacations Inc. v Alves, 2011 SKCA 117 at para 23, 377 Sask R 55, quoting from MacKinnon v Instaloans Financial Solution Centres(Kelowna) Ltd., 2004 BCCA 472 at para 33, [2005] 1 WWR 233). It is for this reason that a class member “loses his or her litigationautonomy, if he or she does not opt out of the class action” (Vaeth at para 44, emphasis added). [40] I will say all of this even more directly: the Herold Plaintiffs have the right to pursue their claim in a regular action outside ofany class action that may be certified.

That right arose the moment their cause of action accrued. This is not a right that will arise only atsome point in the future when the outcome of the application to certify the Brons Action is known. Its continued existence only dependson whether the Herold Plaintiffs fail to opt out of a class action if they are included within the class of a certified class action.

At present atleast, this is merely a hypothetical future possibility. [41] Based on all of this, I am left with no other conclusion than that the Chambers judge erred in principle by failing to identify thatthe Herold Plaintiffs have an extant right to prosecute their action.

The other way to explain this conclusion is that the Chambers Decisionfails to recognize that, standing beside the policy objectives that encourage group actions – most notably, in the present context, theavoidance of unnecessary multiple proceedings – is the preservation of the right of claimants to pursue their claims in a regular action. [42] None of this is to say that the Herold Plaintiffs’ right to pursue their claim outside of the proposed class action is unqualified orcannot be circumscribed.

However, it is a right that is grounded in an important legislative policy and one which must be appropriatelyaccounted for whenever a request is made to stay an individual action in the face of a proposed or certified class action. In my respectfulview, the failure of the Chambers judge to account for this constitutes an error in principle. [43] This error now requires that this Court re-examine whether it is appropriate to stay the Herold Action, even on a temporarybasis. Before entering into this re-examination, there is a second error in the Chambers Decision to consider. 4.

Second error in principle: failure to consider what prejudice the Brons Plaintiffs will suffer if theHerold Action proceeds

[44] A second error in Chambers Decision emerges when the Chambers judge’s reasons are examined against the basic principlesthat govern a request for a stay. [45] The circumstances in which stays of civil proceedings may become appropriate are wide. Reflecting this, this Court haseschewed the application of rigid rules in this area.

In Leier v Shumiatcher (No. 2) (1962), (SK CA), 39 WWR 446 at447 (Sask CA) [Leier], Davis J. (ad hoc), writing for this Court, stated that the right to exercise the discretion to order a stay “should notbe curtailed by any inflexible rule of law, but should be guided in each instance by the merits of the matter under review”. A longerpassage from Leier containing this guidance was quoted with approval in Laxton Hldg. Ltd. v Madill, (SK CA), [1987]3 WWR 570 (Sask CA) at 572–573 [Laxton Hldg.]. In Onion Lake Cree Nation, Ryan-Froslie J.A. referred to these two cases beforeoffering the following

summary: [49] It is clear the discretion to grant a stay of proceedings is not governed by rigid principles or criteria. Instead it is to be guided bythe particular circumstances of each case. Its exercise must not be arbitrary or capricious but rather based on admissible evidence. Therecan be no exhaustive list of factors a judge should consider when determining whether to grant a stay of proceedings as the relevantfactors will, of necessity, be determined by the context in which the request for a stay arises.

Finally, judges should bear in mind whenexercising their discretion that the ultimate effect of the stay will always be either to forestall or postpone access to the courts and, thus,justice. [46] However, none of this is to say that there are not framework principles that govern the exercise of judicial discretion in relationto the grant of a stay.

Justice Paperny made this point in UCANU Manufacturing Corp. v Calgary (City), 2015 ABCA 22 at para 7, whenshe noted that the discretion to grant a stay “must be exercised in accordance with established principles”. [47] As explained in Metropolitan Stores, a “stay of proceedings and an interlocutory injunction are remedies of the same nature”.Justice Beetz went on to immediately state that, in “the absence of a different test prescribed by statute, they have sufficient characteristicsin common to be governed by the same rules and the courts have rightly tended to apply to the granting of an interlocutory stay theprinciples which they follow with respect to interlocutory injunctions” (at 127).

This was reiterated in RJR-MacDonald Inc. v Canada(Attorney General), (SCC), [1994] 1 SCR 311 at 334 [RJR-MacDonald], in which Sopinka and Cory JJ., speaking forthe Court, explained the basic three-part test that generally applies when a court is called to consider whether to grant a stay or aninterlocutory injunction: Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutoryinjunction.

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, anassessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending adecision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases. I will call this three-part test the RJR-MacDonald framework.

In this province, the leading authority explaining it is Mosaic. [48] Inherent in both the second and third parts of the RJR-MacDonald framework is that the applicant seeking a stay orinterlocutory injunction will suffer prejudice if it is not granted. In this regard, the second part of the framework establishes the thresholdas being “irreparable harm”. The third

part invites the court to weigh this harm against that which the respondent will suffer if the stay orinjunction is granted or not. [49] Leaving aside for the moment the degree of harm that an applicant for a stay or interlocutory injunction must show, the ideathat it must demonstrate that it will suffer prejudice if the injunction or stay is not granted appears consistently in the case law.

Forexample only, in Onion Lake Cree Nation, after referring to the onus resting on a party seeking a stay to establish the basis for it, Ryan-Froslie J.A. stated, with reference to Leier and Laxton Hldg., that the applicant for a stay “must show prejudice should the proceedings beallowed to continue” (at para 50).

See also: Home Mortgage Ltd. v Robertson (1984), (SK CA), 35 Sask R 84 at para 2(CA); and Canadian Pacific Railway Company v Kelly Panteluk Construction Ltd., 2020 SKCA 123 at para 55, 17 CLR (5th) 138. [50] Although the RJR-MacDonald framework is applied by courts when considering whether to grant a stay in most contexts, thereare situations when a decision to grant or refuse a stay is made without reference to it. In Hamm CA, Slatter, Schutz and Feehan JJ.A.,speaking per curiam, observed that the RJR-MacDonald framework “should not be blindly extended beyond its context”.

Theyemphasized that it “does not set out a universal mandatory test, and merely states that courts have ‘rightly tended to apply’ the same testfor an injunction and a stay” (at para 10). However, the Court also accepted that the prejudice that an applicant for a stay will suffer if it isnot granted should be considered, stating as follows: [11] … The courts have a wide discretion to grant temporary, permanent, partial, or complete stays in situations like this.

In exercisingthat discretion, where a class action is involved, the presiding judge should have regard to the principles underlying class proceedings:access to justice, judicial economy, and behaviour modification. Balanced against those values are the rights of litigants to litigationautonomy, including the right to commence individual actions.

The degree of overlap between the competing proceedings, the balance ofprejudice to the parties, the potential of inconsistent results, and the need to conserve judicial and private resources are also important. (Emphasis added) As can be seen, although Hamm CA stands for the proposition that the RJR-MacDonald framework does not always apply when a stay issought, it affirms that one relevant consideration is the prejudice that both parties will suffer if it is not granted. [51] I find it difficult to conceive of a situation where, in an assessment of the question as to whether a stay should be granted, oneconsideration would not be whether the interest or stake of the applicant justifies the grant of the stay.

This is true even in cases wherestays are requested because a proceeding is an abuse of process. As explained in Canam Enterprises Inc. v Coles (2000), (ON CA), 51 OR (3d) 481 (CA) at para 55, per Goudge J.A., dissenting (appeal to SCC granted, 2002 SCC 63, [2002] 3 SCR 307),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”

(emphasis added). This statement of law has been repeatedly endorsed by senior appellate courts. See, for example only, Toronto (City) v C.U.P.E., Local 79 , 2003 SCC 63 at para 37 , [2003] 3 SCR 77. [ 52 ] In this case, the test adopted by the Chambers judge did not, directly at least, consider whether the Brons Plaintiffs would suffer an injustice or prejudice if the Herold Action was not stayed, nor did he explicitly seek to balance that prejudice against that which the Herold Plaintiffs would suffer if a stay was ordered.

Instead, as I have explained, the Chambers judge drew from Hollinger four factors that governed his determination of whether the Herold Action should be temporarily stayed pending the outcome of the application to certify the Brons Action as a class action. To recap, these were whether: (

a) there is substantial overlap of issues in the two proceedings; (

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

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

d) the temporary stay will result in an injustice to the party resisting the stay. The first three of these factors speak to several broad policy objectives served if overlapping actions are avoided. However, they say nothing about what specific prejudice the Brons Plaintiffs would suffer if the Herold Action was allowed to proceed. The fourth question the Chambers judge asked was simply whether “the temporary stay will result in an injustice to the party resisting the stay ” (at para 50(d), emphasis added).

The question asks nothing about the prejudice that the applicant will suffer if the stay is not granted. [ 53 ] The failure of the Chambers judge to specifically identify the injustice or prejudice that the Brons Plaintiffs would suffer if a stay of the Herold Action was not granted means that he also failed to ask if there are other ways, short of an order staying the Herold Action, that would protect against that risk. [ 54 ] The explanation for the Chambers judge’s failure to consider what interest, if any, the Brons Plaintiffs had that would justify the grant of a stay of the Herold Action is found in how the reasons were expressed in Hollinger .

In this regard, critical to an understanding of Hollinger is that it was a choice of forum case. It was a dispute over where a claim should be heard – not if a lis could proceed. What was at stake was where litigious issues as between the parties were to be decided. One side wanted the issues heard and decided in Ontario, the other in Illinois. Justice Farley’s reasons identify a series of considerations that led him to conclude that “the Illinois forum is favoured” (at para 8). The prejudice to any litigant required to prosecute the same issue against the same opponent in two jurisdictions is obvious.

Because what was at issue was simply the preferrable jurisdiction to decide the issues between the parties, where both sides had similar, although diametrically opposing, interests, it was not necessary for Farley J. to engage in a weighing of the applicant’s interests. [ 55 ] There are cases that have applied Hollinger outside of its immediate context. However, an examination of those other cases, at least as cited by the Chambers judge, reveals that in each, in one way or the other, there was a consideration of the prejudice that the applicant for the stay would suffer if the stay was not granted.

I will return to discuss several of these decisions later in these reasons. [ 56 ] The important point at this juncture is that the test the Chambers judge employed did not attempt to identify the prejudice the Brons Plaintiffs would suffer if the Herold Action was allowed to proceed, nor did he seek to compare that prejudice to the harm the Herold Plaintiffs would experience if their action was stayed. Instead, he asked himself only if the Herold Plaintiffs would suffer an injustice if the stay was imposed. This is a one-sided question.

It simultaneously gives short shrift to the Herold Plaintiffs’ right to procedural autonomy and fails to question how, if at all, the Brons Plaintiffs would suffer injustice or prejudice if a stay was not granted. A proper consideration of whether to grant or refuse a stay necessarily involves a balancing of competing interests and potential prejudices of both the applicant and respondent. 5. Conclusion on issue A [ 57 ] The Chambers Decision contains two errors. First, it fails to identify the Herold Plaintiffs’ presumptive extant right to prosecute their action.

Second, it fails to identify what prejudice the Brons Plaintiffs would suffer if the Herold Action was allowed to proceed and does not seek to weigh that prejudice against the consequences to the Herold Plaintiffs if their action was stayed. The existence of these errors requires this Court to reconsider whether the temporary stay should have been granted. B. Considering the correct principles, should the Herold Action be temporarily stayed? 1.

Applicable principles [ 58 ] Having identified the errors in the Chambers judge’s analysis, it is useful, at this juncture, to recap the key considerations that should govern the exercise of discretion whether to grant a stay in a circumstance such as this. [ 59 ] Although courts have “rightly tended to apply” the RJR-MacDonald framework when considering requests for a stay ( Metropolitan Stores at 127), a review of decisions that have determined whether to stay individual actions in the face of a proposed or certified class action discloses that many make no direct reference to the RJR-MacDonald framework.

One reason for this might be that the first factor in that framework has no obvious application in a case like this. It involves a “preliminary consideration of the strength of the [applicant’s] case” ( Mosaic at para 113 (a)). This part of the test reflects that, at least in most cases, the request for an injunction or stay is tied to the assertion of a cause of action or other right or claim by the applicant against the respondent. However, this element is absent in cases like this one where the question is whether two overlapping actions can proceed simultaneously.

For this reason, the idea of attempting any sort of examination of the applicant’s claim is out of place. This can be seen in the present context. There is no lis between the Brons Plaintiffs and the Herold Plaintiffs – instead, the fundamental reason standing behind the request for the stay is that each set of plaintiffs is advancing similar claims against overlapping groups of defendants. [ 60 ] This leaves for consideration, within the RJR-MacDonald framework, (

a) the prejudice or injustice the Brons Plaintiffs will suffer if the Herold Action is allowed to proceed, (

b) the prejudice or injustice the Herold Plaintiffs will suffer if their action is stayed, and (

c) a balancing of these competing interests. As explained in Mosaic , the third step “is usually the core of the analysis” (at para 113(c)). In my respectful view, this must remain at the core of a request for a stay of proceedings in a case such as this.

[ 61 ] That said, I also agree with the direction given in Hamm CA – and, on this point, the Chambers judge – that it is generally appropriate to weigh other relevant considerations. These will depend on the circumstance of the case. They will include, in cases such as this one, as per Hamm CA , the policy objectives that underly class proceedings. These objectives encompass not only access to justice, judicial economy and behaviour modification, but also the rights of claimants to litigation autonomy.

Although partially enveloped in these considerations, they will generally invite an assessment as to whether the requested stay will avoid unnecessarily duplicative proceedings, and all that they would bring. Several of the other cases that I will later review add to the list of potential considerations, such as the bona fides of the action subject to the potential stay and the ability of the plaintiff to proceed with that action.

All of this is also, as Hamm CA recognizes, impacted by such considerations as the degree of overlap between the competing proceedings and the terms of the proposed stay including its duration. [ 62 ] I would add one final point before turning to the question of whether a temporary stay should be imposed in this case. It is this: when considering a request for a stay, the court should assess whether and how a different order, short of the denial of outright access to the courts, will affect the balancing of the competing interests of the applicant and respondent.

This idea is consistent with the principle that a stay or injunction should be granted only if necessary to protect the applicant’s interests and then should only be as broad as required to do so. See, for example only: NunatuKavut Community Council Inc. v Nalcor Energy , 2014 NLCA 46 at paras 71 and 95 , 358 Nfld & PEIR 123; Cambie Surgeries Corp. v British Columbia (Medical Services Commission) , 2010 BCCA 396 at para 39 , 323 DLR (4th) 680; St.

Lewis v Rancourt , 2015 ONCA 513 at para 16 , 337 OAC 15; and Labourers’ International Union of North America, Local 183 v Castellano , 2020 ONCA 71 at paras 18 and 26 , 444 DLR (4th) 183. [ 63 ] In other words, when confronted with a request for a stay of proceedings, the court should assess what other tools exist for managing the interests at stake in the application.

Brought into the circumstances of this case, this means that the court should assess whether some procedural mechanism – other than a stay – might eliminate or sufficiently ameliorate the deleterious effects of the existence of parallel actions such that the reasons for the stay no longer justify its grant. 2. Additional background [ 64 ] Earlier in these reasons, I reviewed some of the background to the Brons Action and the Herold Action.

At this juncture, it is appropriate to say something more about the substance of both claims and the reasons that stand behind the decision made by the Herold Plaintiffs to pursue their action outside of the proposed class action. [ 65 ] As I have mentioned, the Herold Action is a focused claim. It is pursued on behalf of family members of five of the individuals who perished in the bus crash. The relief claimed in the Herold Action, including declaratory relief and various heads of damages, is necessarily bounded by the plaintiffs whose claims are advanced in that action.

The Herold Action also sues a limited number of defendants, namely, the truck driver (Mr. Sidhu), the trucking company (Adesh), the bus manufacturer (MCI) and Saskatchewan. The liability issues to be decided in that action are necessarily limited to the acts and omissions of these defendants. [ 66 ] All of this stands in significant contrast to the Brons Action. Although it is initiated by family members of one of the individuals who died in the accident, as well as one of the surviving occupants of the bus, the scope of proposed claimants – should it be certified – is expansive.

The proposed class encompasses not only all those who were on the bus and all family members of the bus occupants, it also includes a vast array of other people. The proposed class includes various professionals who attended at the accident site, such as police officers, paramedics, firefighters, accident reconstruction experts and coroners. It also extends to a group described as “First Citizens”, being any person “who went directly to the Collision site doing everything possible to help”.

The breadth of the proposed class means that the theories of liability, and the damages claimed, are necessarily more expansive than what is advanced in the Herold Action. [ 67 ] The issues raised by the Brons Action are also widened because of the addition of defendants not sued in the Herold Action. In this regard, the inclusion in the Brons Action of the owner of the bus company (Charlie’s Charters Ltd.), Saskatchewan Government Insurance and the governments of Canada and Alberta, results in the pleading of issues that are not alive in the Herold Action.

Finally, the Brons Action seeks relief not claimed by the Herold Plaintiffs, such as Charter damages. [ 68 ] Of course, it remains to be seen whether the Brons Action will be certified as a class action. Its ultimate scope will depend on whether the action is certified and, if so, what causes of action survive, what class is defined in the certification order and what common issues are certified.

All of this will also then determine what individual issues will remain after common issues are decided. [ 69 ] However, the important point is that the Brons Action has a scope that is – at this juncture, at least – much broader than the Herold Action. It is patent, therefore, that the Chambers judge misspoke when he described the two actions as being “virtually identical” ( Chambers Decision at para 56). [ 70 ] All of this underscores a final difference between the two actions.

In contrast to the Brons Action, the Herold Action is unencumbered by the procedural accoutrements that are necessarily associated with a class action. For example, its prosecution is not dependant on its certification as a class action, nor any subsequent appeal that may be taken from that decision, if granted. Its plaintiffs are not required to give notices to class members. Presumptively, the trial of the Herold Action is unlikely to be bifurcated, or trifurcated, the way that liability and damages determinations in a certified class action may well be.

The Herold Plaintiffs do not require court approval for the settlement of their action the way that the Brons Plaintiffs will if their action is certified as a class action. [ 71 ] The listing of differences between the Herold Action and Brons Action is not in any way intended as a criticism of the decision taken by the Brons Plaintiffs to pursue their claims as they have. To the contrary, they likely have good reasons for every choice they have made and will make in the future.

However, my emphasis of these differences is intended to highlight that there are significant substantive and procedural distinctions between the Herold Action and the Brons Action. [ 72 ] The differences that I have described lie at the heart of the Herold Plaintiffs’ opposition to a stay of their action. Several of the Herold Plaintiffs state that they do “not want to be part of any lawsuit that has other plaintiffs and other defendants in the claim”.

Taken together, the Herold Plaintiffs’ affidavits explain that they have chosen to sue a limited group of defendants who “carry the highest level of responsibility”, and they have not included in their lawsuit persons who were less directly impacted by the crash. More generally, the

Herold Plaintiffs say that being part of the class action will slow the prosecution or potential settlement of their claims. They describe steps they have taken to prosecute their action. This includes obtaining a report from an accident reconstruction expert. [ 73 ] Based on all of this, the Herold Plaintiffs say unequivocally that they wish to prosecute their claim as a regular action and not within the confines of a class action. Along with this, they explain that they intend to opt out of any class action that might be certified, if they are included in it.

They express their concern that, if the Herold Action is stayed even temporarily, evidence may be lost or become unavailable. In this regard, their affidavits describe that Mr. Sidhu is facing deportation and that Mr. Stevenson is in ill health. They give evidence that they do not want to be represented by the Brons Plaintiffs’ lawyer. Instead, they wish to be represented by legal counsel of their own choosing.

Finally, the Herold Plaintiffs describe emotional, psychological and financial harm that they would suffer by being delayed even temporarily in their action. [ 74 ] The Brons Plaintiffs’ evidence largely relates to the history of proceedings and correspondence between counsel. They offer evidence of the positions taken by parties affected by the accident other than the Herold Plaintiffs. At the hearing of this appeal, the Brons Plaintiffs also applied for leave to file evidence of procedural steps taken after the Chambers Decision .

These steps include the bringing of an application by Saskatchewan in the Brons Action similar to that which it had brought in the Herold Action, the commencement of a further action relating to the crash not identified in the Chambers Decision , and that the Brons Plaintiffs and the Herold Plaintiffs have now examined Mr. Sidhu. [ 75 ] With this additional background in hand, I now turn to whether, on the facts here, the Herold Action should have been stayed, as ordered by the Chambers judge. 3.

Weighing the relevant considerations [ 76 ] As I have explained, it is appropriate in a case like this to begin with an assessment of what consequences may fall on each party if a stay is ordered or refused. [ 77 ] The Brons Plaintiffs’ request for a stay of the Herold Action rested on the observation that issues might be decided in the context of the Herold Action that could affect them in their own action. The immediate litigation event that prompted their interjection was Saskatchewan’s application to be struck as a defendant named in the Herold Action.

The Brons Plaintiffs were concerned that they, and the people they are seeking to represent, stood to be affected by the outcome of that application. In their notice of application, the Brons Plaintiffs stated that if the Herold Action was not stayed, they would face prejudice because issues might be decided in that action that could affect their rights.

More specifically, their proposition was that if the Herold Action “is not stayed pending the determination of the certification application in the Brons Action, any determinations of findings of law or fact in any future interlocutory applications could affect the right of all presumptive class members with claims arising out of the Humboldt Bus Crash”.

More broadly, the Brons Plaintiffs added that “if the Herold Action were permitted to proceed, it would cause prejudice to [them] and all presumptive class members as they could be impacted by any findings in the Herold Action without having had the opportunity to be represented”. [ 78 ] As I read the record, the interest that the Brons Plaintiffs claim justifies the grant of a stay is directly related to that which the Chambers judge relied on to grant the stay, although he did not cast his reasons as being related to how the continued prosecution of the Herold Action will prejudice the Brons Plaintiffs.

In this regard, as I have explained, his reasons speak more generally to the goals of avoiding multiple proceedings involving the same subject matters. The existence of multiple proceedings, in turn, raises broader interests, such as the waste of valuable judicial resources and the risk of inconsistent verdicts. [ 79 ] For their part, the Herold Plaintiffs suggest that they will suffer three types of prejudice should a stay be granted, even on a temporary basis. As noted above, they submit that the stay would impair their right to procedural autonomy over their own action.

They also say that they would suffer financial and emotional prejudice if they were prevented from moving forward with their action. In my respectful view, a weighing of the first of these considerations is itself sufficient to offset any of the bases the Brons Plaintiffs offer in support of a stay in this case. [ 80 ] I would begin my assessment of the balancing of the competing interests of the parties by noting that none of the reasons given by the Brons Plaintiffs for seeking a stay explain why there should be a stay of the Herold Action only until certification is decided.

They would all continue to exist post-certification – a point in time at which the Chambers Decision recognizes that no stay should be in place. More importantly, five factors explain why none of the reasons given by the Brons Plaintiffs or the Chambers judge justify even a temporary stay of the Herold Action. [ 81 ] The first is that the effect of the stay on the Herold Plaintiffs is significant. It bars completely their access to the court – a right that is not to be lightly interfered with.

I reject the characterization of the stay order as having only a trifling or limited effect on the ability of the Herold Plaintiffs to prosecute their action because it allows their counsel to participate “in all pre-certification processes which may be relevant to the Herold Action” ( Chambers Decision at para 11(2)). Since the Herold Plaintiffs are not seeking class certification, there are few pre-certification steps to be taken in the Brons Action that are likely to be relevant to the prosecution of their claim. While the Chambers Decision contemplates that Mr.

Sidhu may be questioned (which has now taken place) and provides that these pre-certification steps may include pre-trial discovery of other relevant witnesses including Mr. Stevenson, this may occur only if said witnesses “agree to participate in this matter” (at para 11(2)(b)). [ 82 ] The Brons Plaintiffs argue that the Chambers Decision should be viewed by this Court as, in effect, being one of case management. However, the order made by the Chambers judge was not made in the context of the Herold Action, nor does it provide for the management of it.

A case management order would be one that provided the terms by which the Herold Action could proceed and perhaps coordinate this with the ongoing prosecution of the Brons Action. For example only, it might provide how pleadings in the Herold Action would be closed, how the required mandatory mediation would take place, how document disclosure would be obtained and how questioning would be held. It might direct that some of this be done in coordination with the Brons Action. The order made here does none of that.

Instead, it stops the Herold Action in its tracks and simply entitles the Herold Plaintiffs to participate in certain pre-certification steps in the Brons Action. [ 83 ] The Brons Plaintiffs emphasize that the stay of the Herold Action is temporary. It will expire when their action is certified and

opt-out notices are delivered or when its certification application is dismissed. I accept that the duration of a stay can be relevant in the overall assessment of the situation. However, the stay ordered in this case is for an indefinite period and may well be lengthy. In latter regard, apart from the uncertainty over when a decision on the Brons Plaintiffs’ certification application will be rendered, it is unknown whether there will be an appeal from it.

Given the experience that certification decisions are often appealed from, there is ample reason to believe – and there is certainly a material risk – that the overall effect of the Chambers Decision will be to delay the continuation of the Herold Action by months, if not years. [ 84 ] It is also important to understand that the delay that the stay will cause is apt to result in an overall delay in the final resolution of the Herold Action. There is no suggestion that by delaying when those steps will occur, the time needed for their completion will be shortened.

In the result, the Brons Plaintiffs’ emphasis that the stay is temporary ignores that any time wasted in the prosecution of the Herold Action today is likely to directly result in an equivalent delay in the case being set down for trial, if it is necessary that the action reach that stage. [ 85 ] The second factor is that the circumstances here are far removed from a situation where there is a risk of inconsistent verdicts on issues of ultimate liability.

The Chambers judge found support for the grant of a temporary stay of the Herold Action in the Herold Plaintiffs being “overly optimistic about their ability to prosecute their lawsuit as expeditiously as they assert” ( Chambers Decision at para 74). However, as I see it, this works against the grant of a stay at this stage of the proceedings, because it means that the risk of inconsistent trial verdicts is some way down the line.

As and when the Herold Action becomes ready for trial, both sets of litigants, and the court, can re-evaluate whether or how any issues arising because of any overlap with the Brons Action are to be dealt with. [ 86 ] Third, particularly at this juncture, I see nothing to prefer the uncertified Brons Action over the Herold Action as the vehicle to litigate the issues that are presently up for determination – whether those issues are interlocutory procedural matters or substantive determinations, such as those which have arisen because of Saskatchewan’s strike application.

So far as the Brons Plaintiffs are concerned that the court might make unwelcome findings in the Herold Action, the same point could be raised by the Herold Plaintiffs to justify a stay of the Brons Action – which, I would immediately add, was not requested by them. If one of the actions was to be chosen as the sole forum in which these issues are to be argued, neither the Brons Plaintiffs nor the Chambers judge explained, at least in a way that I can understand, why it is more appropriate this occur in the Brons Action than in the Herold Action.

This ties to the next point. [ 87 ] Fourth, because the law recognizes that there are circumstances in which multiple actions may exist, it provides various mechanisms to ameliorate the effects of such proceedings that are short of preferring one action by staying a competing one.

These include, but are by no means limited to, the possibility that one party or the other may seek to intervene in the other action at particular junctures, or the management of the two actions so that applications common to both actions are heard by the same judge at the same time, or even that, ultimately, the actions “be tried at the same time or one after the other” as contemplated in Rule 3-81(1)(

b) of The Queen’s Bench Rules . None of this is to say that such an order will necessarily be appropriate. It is, however, to say that there are alternatives other than a stay to ensure that parties are heard in relation to matters in which they each have an interest, and that duplicative proceedings are minimized, if not avoided entirely. [ 88 ] Fifth, several potential concerns that have motivated courts to grant stays in other cases do not appear from the record in this one. This is not a situation where the party whose action is the subject of the stay application lacks resources to prosecute their claim.

This is not a case where that party has a small or trifling claim. This is not a situation where that party can be said in any way to be seeking to abuse the court’s processes by pursuing an individual action in the face of a proposed class action. [ 89 ] The five considerations to which I have referred outweigh the interests that the Chambers judge invoked to justify the imposition of a stay in this case. Overall, although multiple or duplicative proceedings are generally undesirable, they are not prohibited. There are many circumstances in which, in the balancing of the competing interests, they are permitted.

This is one such case. Ultimately, while the Brons Plaintiffs have their reasons why they have chosen to pursue their claims as a class action, the Herold Plaintiffs have their own for deciding to pursue theirs in the context of a regular action, and this should be respected given the circumstances I have described. [ 90 ] I have reached the conclusion that a stay is inappropriate without considering the financial and psychological consequences the Herold Plaintiffs say are visited on them by reason of the stay.

I therefore do not need to address the various arguments they raise that the Chambers judge erred in his analysis of those matters. 4. Further case law [ 91 ] To this point, I made only limited reference to the case law relied upon by the Chambers judge to grant a stay. While I will not refer to all of the decisions the Chambers judge relied on, a brief review of several of the key ones will further assist in understanding my conclusion that even a temporary stay should not be granted in this case. [ 92 ] I have already mentioned Northfield Capital , Hollinger and Workman Optometry .

In Northfield Capital , Ground J. refused to grant a stay of an action because there were applications to certify parallel actions. He held that “the court’s jurisdiction to grant a stay should be exercised sparingly and only in the clearest of cases where [there] would be an injustice or prejudice to the moving party if the stay is not granted” (at para 39).

As I have explained, critical to understanding Hollinger is the fact that it was a dispute between parties as to where the issues between them would be litigated. [ 93 ] Workman Optometry is of interest not only because a request to temporarily stay an individual action was refused, but also because of the approach it takes to assessing a stay request. It involved two proposed class actions and many individual actions advancing insurance claims for business income losses sustained during the COVID-19 lockdowns and restrictions.

Defendants to one of the class actions applied to stay 17 of the individual actions being prosecuted by a national law firm, McCarthy Tétrault LLP. Ultimately, Belobaba J.’s decision to refuse the stay turned on a balancing of the competing interests of the applicant and respondent. In this context, Belobaba J. rhetorically questioned why the moving parties “target only the McCarthy Actions and not the many other individual actions filed throughout [Ontario] by other law firms” (at para 4).

As earlier noted, he recognized that, as a starting point, if “a plaintiff with a good reason to reject the class proceeding and pursue an individual claim, then as a general proposition they should have every right to do so” (at para 9). The case therefore confirms that, the court should begin from the perspective that the right of an individual to pursue a claim outside of the proposed class action will generally be recognized if it is being pursued for legitimate reasons.

[ 94 ] Rooney v Arcelormittal S.A ., 2013 ONSC 6062 , 37 CPC (7th) 68, involved a request by a defendant to a proposed class action to stay several individual actions pending the outcome of a certification application. Important to understanding the case is that the plaintiffs in the individual actions did not oppose the stay of their proceedings pending the outcome of the certification application. Instead, the opposition to the stay came from one of the other defendants to it. This defendant raised Dumoulin and the idea that class proceedings legislation was not intended to impede individual actions.

In ordering the stay, Leitch J. distinguished Northfield Capital because, in that case, members of the putative class had made it “eminently clear that they had considered proceeding as a class action and decided against it and that they would definitely opt out of the Ontario Class Action if it is certified” (at para 76, quoting from Northfield Capital at para 39). [ 95 ] Vaeth is an important case in the context of this appeal because the Chambers judge referred to it throughout his reasons, and the order he made parallels very closely the one made in that case.

Like here, the Court in Vaeth was faced with a request to stay an individual action [Vaeth Action] in the face of a parallel proposed class action [Johnson Class Action]. Apart from the fact that the applicants for the stay were the defendants to both actions, in contrast to the facts in this appeal, the plaintiffs in the two actions were represented by the same law firm. The defendants asserted that the latter fact gave rise to a conflict of interest on the part of the plaintiffs’ counsel.

They therefore sought a temporary stay of the individual action until the conflict of interest was resolved and because of the multiplicity of proceedings. Justice Perell found that a conflict of interest existed that would prevent the same law firm from acting in both actions and ordered the individual action to be stayed pending the outcome of the certification application. Importantly, Perell J. found that the Vaeth plaintiffs “would not be prejudiced [but] rather would benefit by delaying making any decision until after the leave motion and the certification motion are adjudicated” (at para 53).

He later explained this by stating that if they waited until certification, the Vaeth plaintiffs “will be able to make a reasoned decision about whether to opt out of the Johnson Class Action assuming it was certified” (at para 64). Of course, all of this is in contrast to the facts here. As part of his explanation for why he thought the Vaeth plaintiffs would benefit from waiting until after certification had been decided, Perell J. distinguished the facts before him from a hypothetical case where an individual would have a more compelling reason to move forward with a regular action.

He stated that he could “understand why in some class actions, a putative class member with sufficient resources to take on the defendants directly would be prepared to forgo the advantages of being a class member and not wait to learn the outcome of a certification motion, but this is not such a case” (at para 56). This very much describes the reasons the Herold Plaintiffs have given for wanting to go ahead with their action at this time. [ 96 ] The second reason given for the stay in Vaeth was that “the Defendants cannot be in two places at once” (at para 57).

A similar reason was given in support of the grant of the stay in Singh v RBC Insurance Agency Ltd. , 2020 ONSC 5368 . The Chambers judge echoed this as one of the reasons for the grant of a stay in this case at paragraph 54 of the Chambers Decision . However, the stays granted in Vaeth and Singh were at the request of the defendant – not a plaintiff to a competing action.

Leaving aside whether or when a stay is the appropriate method of addressing such concern, whatever weight might be attached to the interests of defendants when assessing whether a stay of an individual action in the face of a competing class action in other cases, none can be given in this case, where the stay was not requested by the defendants. [ 97 ] The final case I will mention is Hamm CA . I see no need to review the complicated facts of that case.

It is sufficient to know that the plaintiffs were pursuing a claim for damages in Alberta that was, to some extent at least, also being advanced in a certified Ontario class proceeding. Key to understanding the grant of the stay in Hamm CA is that the parties who were subject to the stay were class members in the ongoing Ontario class action and had not opted out of that action. Accordingly, the Alberta Court of Appeal observed that the Alberta plaintiffs were bound by a judgment given by the Ontario Superior Court in relation to both the common issues and the process for the determination of individual issues.

This meant that the “damages to which [the Alberta plaintiffs] are entitled will prima facie be determined by the Ontario proceedings”, and the fact that they “might have shown entitlement to those damages through different causes of action does not allow additional or double recovery” (at para 19). For these reasons, the Court directed that the stay of proceedings continue until damages had been assessed in the Ontario class proceedings.

The Court also ordered that, at that future point, the Alberta plaintiffs “ can then move to lift the stay if they can demonstrate that they were not fully compensated in the Ontario action, and that they are able to seek further relief despite the doctrines of issue estoppel, abuse of process, res judicata , or otherwise” (at para 26). [ 98 ] I have taken the time to review these cases to be clear that, consistent with the previous direction given by this Court, the exercise of discretion involved in a decision whether to grant a stay of proceedings “should not be curtailed by any inflexible rule of law” ( Leier at 447).

Even having regard to the additional interests identified in such decisions as Hamm CA , I confirm that I see no basis for the grant of a stay of the Herold Action. Instead, placing the focus where Mosaic directs, that is, “on the justice and equity of the situation in issue” (at para 26), I reiterate my conclusion that it would be inappropriate to order a stay of that action. 5. Conclusion on issue B [ 99 ] No proper basis exists for ordering a stay of the Herold Action at this time.

There are other tools available to the parties and the court to manage the issues that may arise because of the overlap between the Herold Action and the Brons Action. The issue of a stay may be revisited if circumstances change, for example, if the Brons Action is certified as a class action and the Herold Plaintiffs fail to opt out of it. V.

CONCLUSION [ 100 ] For the reasons I have given, in my respectful view, the Herold Plaintiffs’ appeal must be allowed and the stay of the Herold Action be set aside. [ 101 ] The Herold Plaintiffs are entitled to their costs against the Brons Plaintiffs in the Court of King’s Bench and in this Court, including those costs associated with their application for leave to appeal, to be taxed in the usual way.

I would order no costs in relation to the Brons Plaintiffs’ application to adduce fresh evidence, as it was primarily directed towards informing this Court as to developments in the Court of King’s Bench after the rendering of the Chambers Decision . To be clear, since there is no ongoing lis between the Herold Plaintiffs and the Brons Plaintiffs, the costs I have ordered are payable forthwith.

“Leurer J.A.” Leurer J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Whitmore J.A.” Whitmore J.A.