Saskatchewan Court of Appeal: Serial Certification Attempts Abusive
In Abbott Laboratories, Ltd. v Spicer, the Saskatchewan Court of Appeal permanently stayed a proposed class action that was the last of five proposed national class actions concerning the drug sibutramine. The Court held that permitting serial attempts at certification in multiple jurisdictions was an abuse of process and contrary to access to justice. Spicer emphasizes that access to justice “does not require that every prospective class action advance to a certification hearing” (para 82).
Plaintiffs, represented by Merchant Law Group, launched four proposed class proceedings concerning the drug sibutramine, one in Quebec (the “Action-QC1”), one in Ontario (“Action-ON”), one in British Columbia (“Action-BC”), and one in Saskatchewan (“Action-SK”). A second proposed class proceeding was commenced in Quebec by a different law firm (“Action-QC2”). Prior to the decision in Spicer:
- The plaintiffs in Action-QC1 and Action-QC2 both applied for authorization, and ultimately, Action-QC1 was stayed in favour of Action-QC2. The Court denied authorization of Action-QC2, and Action-QC1 was discontinued.
- Action-ON was permanently stayed on the basis that the plaintiff failed to file a certification record within the time required by the Court.
- Action-BC was certified at first instance, but certification was overturned on appeal and no further appeal was taken.
Once the British Columbia Court of Appeal overturned certification of Action-BC, the Defendants brought an application in Action-SK to dismiss or permanently stay Action-SK as an abuse of process.
The Chambers judge applied the doctrine of abuse of process and identified five factors that supported a finding that Action-SK was an abuse of process:
- Action-SK was duplicative of Action-QC1, Action-ON, and Action-BC because it alleged the same basic facts, proposed class and causes of action, and sought the same relief;
- Action-SK was part of a “common effort, piloted by MLG, to certify sibutramine actions – including national class actions – representing class members in every province”, and that MLG had chosen to advance Action-BC instead of Action-SK, only advancing Action-SK once certification was denied in Action-BC;
- Action-SK was commenced for the improper purposes of tolling limitations for residents of Saskatchewan and other provinces while pursuing certification in Action-BC and to serve as insurance in the event Action-BC was not certified;
- If Action-SK proceeded, it would mean relitigation of issues already determined by the BC Court of Appeal in Action-BC as there was no material differences between the two actions and no new evidence; and
- If Action-SK proceeded it would be unfair to the defendants as they have already defeated certification at a heavy financial cost.
Nevertheless, the Chambers judge concluded it was unfair to dismiss Action-SK as an abuse of process because:
- Action-BC significantly advanced the law by requiring a methodology to prove general causation to certify a claim that was not an indirect purchaser claim, therefore, it would be unjust to stay Action-SK;
- Action-SK was the last surviving sibutramine class action, so staying it would be unfair to proposed class members, as they would be denied the advantages of a class action, such as access to justice; and
- Proposed class members should not suffer for the tactical decisions made by class action counsel.
The Court of Appeal agreed that the factors the Chambers judge identified supported a conclusion that Action-SK was an abuse of process. However, the Court of Appeal held that the Chambers judge did err in his application of the three additional factors to conclude that it was unfair to dismiss Action-SK as an abuse of process:
- While it was not an error to consider whether a change in the law introduced by Action-BC could work an injustice, Action-BC did not significantly advance the law. The requirement to show some proof of methodology for establishing causation pre-dated both the lower and appeal decisions in Action-BC. Thus, the decision in Action-BC (specifically, the Court of Appeal decision Charlton v. Abbott Laboratories, Ltd.) did not give rise to unfairness that overcomes the interest of finality in the application of the doctrine of abuse of process by relitigation.
- Access to justice does not work only in favor of plaintiffs. Sometimes it works in favour of defendants where the justness, rightness or fairness of matter requires summary dismissal. Sometimes it works in favour of the justice system as whole, freeing-up resources and affording greater access to justice for others by forestalling unmeritorious claims. Thus, access to justice does not require proposed class members be given multiple opportunities at certification. It requires the opposite: where certification has already been argued and rejected, access to justice requires that unnecessary duplicative proceedings be avoided, and the judicial system resources be allocated to other matters. Accordingly, the Chambers judge erred in principle to employ the concept of access to justice to refuse to stay Action-SK on the basis that it was the last surviving prospective national class action.
- It was an error to consider whether it would be unfair for proposed class members to suffer the tactical decisions made by class counsel, as this was a factor highlighting the abusive nature of the litigation.
The Court concluded that Action-SK was duplicative of Action-BC, where certification had already been rejected. To allow Action-SK to proceed would be an abuse of process that would undermine the administration of justice. The Court therefore permanently stayed Action-SK.