What happens when two different law firms file a proposed class action against the same defendant? This was the issue before the Honourable Justice Edward P. Belobaba in DALI 675 Pension Fund v SNC Lavalin.
In this case, a law firm filed a proposed national class action against the defendant, SNC Lavalin, in Quebec (the “Quebec Action”). A different law firm representing a different plaintiff filed a proposed national class action against the same defendant, SNC Lavalin, in Ontario (the “Ontario Action”). Both actions allege security misrepresentations in the secondary market. Neither action has been certified.
The Plaintiff in the Quebec Action and the Defendant, brought a motion to stay the Ontario Action as an abuse of process. The Plaintiff in the Quebec Action argued that the Ontario Action is a duplicative proceeding that amounts to an abuse of process of the court.
Just because an action is duplicative, does not necessarily make it an abuse of process, at least not in the class actions context. As the court noted in Silver v Imax Corporation, it is not unusual for class proceedings to be commenced contemporaneously in different jurisdictions. Even where a class proceeding has been certified elsewhere, parallel proceedings may by permitted to continue.
At paragraph 36 of the decision Justice Belobaba noted:
If two proposed national class actions are filed by different law firms in different jurisdictions, the two class counsel firms should ideally join forces and advance a single national proceeding. If this is not feasible, a motion to stay one of the proceedings as an abuse of process is certainly possible, provided there is compelling evidence that one of the proceedings was duplicative when filed and was filed for no legitimate purpose. However, if there is no abuse of process, and the defendant chooses not to bring a forum non conveniens motion, the two proceedings will continue in parallel. This is not a troubling outcome. As already noted, parallel proceedings are a common feature of modern class action litigation. At some point, however, a court may have to decide which of the two actions should be preferred.
In its analysis, the court considered whether the claim filed in the Ontario Action was duplicative of the earlier claim filled in the Quebec Action. Justice Belobaba found there was no compelling evidence that the Ontario Action was duplicative when filed and no evidence that it was filed for no legitimate purpose.
Ultimately, the court declined to grant the motion to stay the Ontario Action finding no evidence of abuse of process. Beloboba J. noted, “where parallel proceedings are not an abuse of process but nonetheless raise questions of preferabiltiy, these questions are best addressed at certification under the preferabiltiy criterion.” The court confirmed that preferabiltiy should be decided at certification where the court will have the benefit of more complete information.
 DALI 675 Pension Fund v SNC Lavalin, 2019 ONSC 6512.
 Ibid at para 1.
 Ibid at para 4.
 Ibid at para 5.
 Ibid at para 12 citing to Silver v Imax, 2009 CanLII 72334 (ONSC) at para 133.
 Ibid at para 8.
 Ibid at para 42.