Overlapping national class actions are a reality of our federal system,[1] and their management by the Superior Courts, in the absence of a common legislative framework, has been the subject of appellate consideration across Canada.[2]
In Kirsh,[3] the Divisional Court recently considered the principles applicable to the analysis of preferability and abuse of process in the context of parallel national class actions. In doing so, it rejected the defendant drug manufacturers’ invitation to adopt a bright line, first-to-certify rule for managing overlapping class proceedings. It also confirmed what the class actions bar has known for a long time: there is no panacea for the phenomenon of parallel and duplicative national class actions commenced in different Canadian jurisdictions, particularly when the overlapping proceedings are commenced by different plaintiffs and different class counsel.
Kirsh marks the first appellate consideration of the doctrine of abuse of process in the context of class actions in Ontario since the Divisional Court’s 2009 decision in Mignacca.[4] It confirms the following overarching principles that guide the analysis of both preferability under s. 5(1)(d) of the Class Proceedings Act, 1992[5] and the doctrine of abuse of process on a motion to stay a partially or wholly overlapping class proceeding:[6]
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