In Kirsh v. Bristol-Myers Squibb, the Court provided guidance on situations where two national class actions seeking the same or similar relief should be allowed to proceed concurrently. In doing so, the Court considered: (a) when to stay overlapping class actions commenced in different jurisdictions; and (b) the preferable procedure certification criterion pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6.
Background and facts
Two sets of representative plaintiffs commenced separate proceedings, one in Ontario and one in Québec, each seeking to certify a national class action against the manufacturers and marketers of Abilify and Abilify Maintena, regarding the side effects of these anti-psychotic medications.
The Ontario action was commenced with the Kirshs as the representative plaintiffs on June 16, 2016, four months before the Québec action was commenced, with Scheer as the representative plaintiff. While the two actions were similar and sought to achieve the same goal of certification, the statements of claim were starkly different. The Ontario action advanced claims for, among other things, negligence, failure to warn and conspiracy. The Québec action (initially) only advanced a negligence claim. Further, Scheer subsequently discontinued the Québec action against the manufacturer of Abilify Maintena, effectively ending any claim related to that medication.
In the time leading up to the certification hearing in Ontario, the Québec action was amended to mirror the Ontario claim, save and except for the discontinued claims against the manufacturer of Abilify Maintena. The defendants did not oppose certification in the Québec action, and the proposed class action was authorized.
The Ontario action proceeded to the certification motion.
Motion judge’s decision in the Ontario action
At the certification hearing in Ontario, Justice Morgan heard two motions: (a) the plaintiffs’ motion for certification; and (b) the defendants’ motion for an order staying the action as an abuse of process, and alternatively, denying certification of the Ontario action because the Québec action was the preferable procedure.
Justice Morgan certified the Ontario action and refused to grant a stay or to find that the Québec action was the preferable procedure. The judge assessed the factual matrix by looking at the chronology of events and the similarities between the two actions. Additionally, Justice Morgan placed great emphasis on the defendants’ actions (or lack thereof) in not opposing the certification of the Québec action.
The following excerpt from the decision seems to encapsulate the issues:
There is no evidence that the Defendants have done anything improper. However, they are undoubtedly trying to benefit from the Scheer plaintiff’s [in the Quebec action] mysterious, last-minute decision to make his pleading look like the pleading herein. This circumstance has allowed them to pass the authorization hurdle in Quebec without a response, allowing them [the defendants] to contend with a plaintiff who in seeking authorization has not had to put in the deep work that the Plaintiffs before me have done. To use the words of Justice Perell in Kutlu, the Defendants’ request for a stay of proceedings looks like a way of ensuring that they will go to trial on the merits with what they hope is “the least formidable foe”. (emphasis added)
Justice Morgan based his analysis on the preferable procedure issue, in large measure, on the reasoning provided for the stay issue. Specifically, Justice Morgan noted that, “[…] suffice it to say that if the [Ontario action] needs to be stayed then it is also not the preferable procedure, and if [the Ontario action] does not need to be stayed, then it can be evaluated on its own without reference to the Quebec claim”.
Justice Morgan exercised his discretion in not staying the Ontario action, specifically noting that the Ontario action had been commenced for legitimate reasons, which reasons still exist. As such, the action cannot be an abuse of process simply because another proceeding is commenced after the fact to match the Ontario action.
Divisional Court’s decision
The defendants appealed on the following grounds:
- The motion judge erred in applying the abuse of process doctrine since there is a presumption that an overlapping or duplicative class proceeding should be stayed unless the plaintiffs can demonstrate a benefit to the class in allowing both actions to proceed; and
- The motion judge erred in failing to crown the Québec action as the preferable procedure by conflating the test for staying the action with the test for the preferable procedure criterion.
Justice Favreau, writing for the Divisional Court, found no such errors. Rather, Justice Favreau noted that the motion judge rightfully exercised his discretion in determining the issues of abuse of process and preferable procedure. Specifically, the Court held as follows:
- There is no presumption that an overlapping or duplicative class proceeding should be stayed unless there is a benefit to the class. Instead, each case must be decided on its facts with considerations including the benefits to class members, history of the matter and the relationship between the two proceedings. As such, the Court found that the motion judge was within his discretion to take into account and correctly assess key facts and their implications on a motion to stay. These facts included: (a) the modifications to the Québec action to match the Ontario action; and (b) the defendants’ zealous advocacy opposing the Ontario action’s certification, but the adoption of a laissez-faire attitude toward the Québec action.
- Determinations relating to the preferable procedure are entitled to special deference. Keeping this at the forefront, the Court noted that while a separate analysis into the preferability criterion by the motion judge would have been helpful, the conclusion that the Ontario action met the preferability criterion was supported by the record and the detailed reasoning on the stay issue. The Court noted the material difference between the Ontario action and the Québec action, which made the Ontario action a preferred way to protect the class members’ rights : the Québec action had no claim against Abilify Maintena.
Significance and key takeaways
In a multi-jurisdictional landscape, overlapping or duplicative class actions are a regular occurrence – and they cannot always be resolved by way of carriage motions. Carriage motions are used to avoid duplication, inconsistent results and double recovery when the overlapping class actions are commenced in the same jurisdiction – they are not available, as was the case in Kirsh, when the overlapping class actions are started in different jurisdictions. Accordingly, where multiple actions exist, defendants must be mindful of their strategy to oppose, or consent to, certification proceedings and the attendant impact on subsequent motions to stay. Further, defendants would do well to heed Justice Perell’s warning not to be seen to window-shop for the “least formidable foe”.
Class actions aim to serve essential goals, namely, judicial economy, behaviour modification and access to justice. Kirsh may appear to run counter to these goals, specifically, that of ensuring judicial economy. But perhaps the biggest takeaway from Kirsh is that courts will continue to carefully balance all of these goals.
“To stay or not to stay”, then, will be a question left to be answered based on the unique circumstances of each case. For more information regarding class actions, please reach out to any member of Dentons Canada’s Class Actions group.
 2021 ONSC 6190 [Kirsh].
 s. 5(1)(d), Class Proceedings Act, 1992, S.O. 1992, c. 6 [The Court shall … certify a class proceeding on a motion … if a class proceeding would be the preferable procedure for the resolution of the common issues].
 2020 ONSC 1499.
 Kirsh at para 25 (internal citations omitted).
 Kirsh at para 23 (internal citations omitted).