Background
In InvestorCOM Inc. v. L’Anton, 2025 BCCA 40 (“InvestorCOM”), the British Columbia Court of Appeal considered the approach to address parallel proposed class actions commenced in two different Canadian provinces.
After a data breach, the proposed class actions were commenced in BC and Ontario advancing similar claims and seeking certification as national class actions. The defendants brought a motion in the BC action seeking to have it stayed as an abuse of process arguing that it served no legitimate purpose and overlapped with the Ontario action. The stay motion was brought prior to certification.
Motion Decision
In the initial motion decision, the Court noted that the provisions of the BC Class Proceedings Act, RSBC 1996, c 50 (“BC CPA”), dealing with multi-jurisdictional proceedings do not oust the jurisdiction of superior courts to stay proceedings as an exercise of discretion in appropriate circumstances. While noting the various problems with multiple class actions (e.g., risk of inconsistent decisions, waste of resources, duplication of work by counsel, and forum shopping by counsel), the Court noted that a proposed parallel class action is not necessarily an abuse of process.
The Court noted the various justifications for bringing the BC action in parallel to the Ontario action as follows:
(1) the BC action named an additional critical defendant which was not a party to the Ontario proceeding;
(2) the Ontario proceeding did not capture the members of the putative class residing in Quebec; and
(3) the BC pleading precisely identified the statutory causes of action for breach of privacy in the various provinces where such legislation existed and crafted common issues which were superior to those proposed in the Ontario action.
The Court concluded that the justifications were legitimate and that the BC action was neither completely duplicative of the Ontario action nor brought for an illegitimate purpose. The Court concluded there was no abuse of process. The Court also noted that the issues concerning the preferability between the BC action and the Ontario action would be resolved at a later date.
Appeal Decision
The Court of Appeal dismissed the appeal.
The Court noted that the mere fact that there is a similarity between the proposed class action and a parallel proceeding in another province is not sufficient to infer that the BC action is an abuse of process. The Court noted that parallel proceedings only become potentially problematic at the certification stage. Prior to that, the plaintiffs are simply different individuals advancing their own individual claims. It is only if and when an action becomes certified that the issue of potentially overlapping and duplicated claims arises.
The Court held that, for this reason, there must be unusual or extraordinary facts to support staying a parallel class action as an abuse of process prior to the certification stage. The Court affirmed that the mere fact that there is a possibility of duplication if the action is eventually certified, without more, is unlikely to establish an abuse of process at an early stage.
The Court noted that amendments to the BC CPA aimed at addressing multi-jurisdictional class actions intended that issues of preferability generally be addressed at the certification stage and not by way of preliminary motion. As the Court noted, this approach makes sense because it is only at the certification stage that the issue crystallizes. It is also appropriate to address the issue at the certification stage so that it can be decided with the benefit of the evidentiary record compiled for the certification motion.
In considering the particular proposed class proceeding at issue, the Court noted that there were no hallmarks of abuse of process in the commencement and advancement of the BC proceeding. It noted that there are differences in the approach taken to data breaches in various provinces, depending in part on whether a statutory breach of privacy tort exists or not. It also noted different cost regimes in BC and Ontario. It concluded there were legitimate reasons for the plaintiff to commence the claim in BC and it could not be inferred that the plaintiff had improper motives in doing so.
Key Takeaways
The approach taken in InvestorCOM emphasizing the general preference for addressing parallel proceedings at the certification stage rather than at a preliminary stay motion is consistent with the approach taken in other jurisdictions, including in Ontario (see, for instance, DALI 675 Pension fund v. SNC Lavalin, 2019 ONSC 6512 (where leave was then refused); Strathdee v. Johnson & Johnson Inc. 2021 ONSC 7557). More broadly, it is also consistent with the approach in other contexts, including in the recent Supreme Court of Canada decision in Saskatchewan v. Metis Nation 2025 SCC 4, which has concluded that a multiplicity of proceedings and some overlap of issues is not necessarily indicative of an abuse of process warranting a stay. In the class action context, as emphasized in InvestorCOM, multiple proceedings only truly become problematic if and when the certification stage is reached and, prior to that stage, something more exceptional is required to obtain a stay.
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