In InvestorCOM Inc. v. L’Anton, 2025 BCCA 40 (InvestorCOM), the BC Court of Appeal reaffirmed that pre-certification stays of proposed class actions should be reserved for “unusual or extraordinary” circumstances, and held that the possibility of duplication between two proposed multi-jurisdictional class proceedings was not sufficient to justify a pre-certification stay. This decision builds on the Court’s prior statements to the same effect in Fantov v. Canada Bread Company Limited (Fantov).[1]
The decision arises out of a proposed class action relating to a data breach whereby a BC plaintiff claims on behalf of a proposed class of customers who suffered a breach of privacy as a result of the breach. A parallel claim was commenced in Ontario by an Ontario plaintiff, advancing similar claims and seeking certification as a national class. The defendants attempted to strike the BC claim on the basis that it served no legitimate purpose given its overlap with the Ontario action and was an abuse of process as a result. The lower court denied the defendants’ stay application and that decision was upheld on appeal.
In coming to their conclusion, the Court emphasized that the coordination of multi-jurisdictional class actions based on similar wrongs is a matter best left for certification.
First, the Court drew a distinction between whether a proposed class action might be considered “duplicative” pre-and post-certification. Where two plaintiffs bring similar claims in proposed class actions against the same defendants for similar wrongs, the actions are not “duplicative” unless and until each action becomes certified as a class action covering a broad number of claims for a class of people.[2] Until certification is achieved, it is simply a matter of two plaintiffs advancing their own distinct claims. The basis for the defendants’ allegation that the claims were abusive therefore couldn’t arise until certification, and the application to stay the claim as abusive was premature.
Further, the Court reinforced that BC’s Class Proceedings Act (CPA )[3] provides the appropriate mechanism to address concerns arising from duplicative multi-jurisdictional classes at certification.[4] Under s. 4.1(1)(b), the CPA specifically provides the opportunity in a certification application for the Court to refuse to certify a class proceeding if the Court is of the view that it should proceed in another jurisdiction, instead.
The Court also took the opportunity to point out certain factors which indicated a lack of abuse by the respective plaintiffs and justified two proceedings:
- The BC and Ontario actions have different plaintiffs and different class-counsel
- The BC action was commenced shortly after the data breach by the plaintiff reaching out directly to counsel
- The BC action had a wider scope of claims and claims against an additional defendant as compared to the Ontario action
- The approach to data breaches may vary between provinces
- The costs regime varies between provinces
On the whole, the Court’s decision is in keeping with a cautious approach to staying or striking proposed class actions prior to certification, maintaining that the battleground for many of the procedural issues arising in class actions generally remains the certification application.
For more information on this topic, please reach out to the author, Jaclyn Vanstone.
[1] Fantov v. Canada Bread Company Limited, 2019 BCCA 447 (“Fantov”)
[2] InvestorCOM at para 7
[3] Class Proceedings Act, RSBC 1996, c. 50 (the “CPA”)
[4] InvestorCOM at para 16
