Weaponized Access to Justice: Staying Individual Actions Pending Certification of a Class Action

  • September 15, 2021
  • Jasminka Kalajdzic, associate professor | clinic director, Windsor Law | Class Action Clinic

Access to justice and judicial economy are two of the three axiomatic goals of class actions. The former represents the idea that financial, psychological and other barriers to the court system can be reduced by pooling resources in a single action, allowing individuals to sue when it would otherwise not be feasible. The latter refers to the efficiencies that can be gained when one action, as opposed to duplicative ones, are pursued against the same defendants.

Perhaps ironically, increasing access to justice may, in fact, reduce judicial economy in that class actions ‘stir up’ litigation that would simply never be brought on an individual basis. A recent decision by the Saskatchewan Court of Queen’s Bench reveals the tension between these two policy goals.

In Wasserman v Saskatchewan (Highways and Infrastructure), the representative plaintiffs in a proposed class action arising from the Humboldt Broncos bus crash sought an order staying Herold v Saskatchewan, one of sixteen individual lawsuits brought by survivors and family members of those killed in the tragedy. Most of the individual actions had been commenced prior to the class proceeding against many of the same defendants. The litigants in all of the other individual cases had agreed to hold their cases in abeyance pending the disposition of the certification motion in Wasserman.

The main argument advanced by the representative plaintiffs was that allowing one or more of the related civil actions to proceed in tandem with the class action could result in inconsistent judicial rulings and inconsistent verdicts. They submitted that the certification motion should be heard first (scheduled for April 2022) following which class members, including the Herolds, could opt out. The Herold plaintiffs strongly opposed the motion, arguing that their case was the first one to be filed, that they were ready for trial, and they would be prejudiced if forced to wait for the outcome of the certification motion.

Justice Mitchell identified two issues to be determined on the motion:

  1. First, what is the applicable standard for staying an individual action prior to the certification of a proposed class action?
  2. Second, applying this standard should the Herold action be stayed pending a decision on the certification application in the class action?

Ultimately, he granted the stay, on terms, pending the resolution of the certification motion.

Standard for Staying Individual Actions Prior to Class Certification

Justice Mitchell found that the applicable statute was the Queen’s Bench Act, not the Class Actions Act, because the stay provisions in the latter could only be invoked in the context of a certified class action. Nevertheless, the legal principles regarding a stay application are the same under both statutes: the court’s authority to stay a civil action is based not on the clearest of cases standard proposed by the respondents, but on a “more holistic basis” taking into account the interests of the parties in both actions, and the principles of finality, consistency and judicial economy.

Justice Mitchell went on to identify the applicable criteria on the stay application; when the application is not founded on an abuse of process argument, the central objective is the avoidance of a multiplicity of proceedings. In this context, the four Hollinger factors are paramount:

(a)  whether there is substantial overlap of issues in the two proceedings;

(b)  whether the two cases share the same factual background;

(c)  whether issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources; and

(d)  whether the temporary stay will result in an injustice to the party resisting the stay.

Applying these factors, Justice Mitchell found that “permitting this and any other related civil actions to proceed pending the certification application in the [Wasserman] Class Action is tantamount to this Court countenancing multiple proceedings which could imperil the integrity of the judicial process.” A stay would “prevent unnecessary and costly duplication of judicial and legal resources.” He also found that a stay would not result in any injustice or prejudice to the Herold plaintiffs because, contrary to their submissions, their case was not ready for trial, and all work done to date would not be thrown away. In terms of the psychological harm the Herold plaintiffs swore would result from being forced to wait years for their individual case to be resolved, the judge said there was no medical evidence of actual psychological harm, and any distress or anxiety caused by the delay was equal to the distress and anxiety caused by proceeding with the litigation process.

Finally, in response to the evidence that the driver of the truck would be deported prior to the certification hearing, and another key witness was in ill health, Justice Mitchell ordered that the Herold plaintiffs could participate in pre-trial discovery of witnesses and oral questioning of the driver by class counsel.

Discussion

As I commented on Twitter the day Justice Mitchell’s reasons were released, the decision in Wasserman is wrong on the law and wrong as a matter of policy.

First, there are no judicial efficiencies to be gained by staying the Herold action. At best, there is a postponement of the inevitable multiple proceedings that result when individuals choose to opt out of a certified class action.

Second, the stay was granted pending determination of the certification motion, to be heard next April. Unlike other cases, the stay was not granted to allow a parallel proceeding to resolve issues on the merits. For example, in Bank of Montreal v Ken Kat Corporation (a decision Justice Mitchell relies upon), the court stated, citing Hollinger, that “[T]emporary stays pending the resolution of another proceeding are typically granted when the other proceeding would ‘substantially reduce the issues to be determined’ or if success in the other proceeding could render the outstanding issues in the case ‘substantially moot’ or otherwise have a ‘material’ impact… .” A certification decision does not substantially reduce any issues on the merits of the action, nor does it render the Herold action moot.

Third, the stay actually disadvantages the Herold plaintiffs, while a refusal of the stay would not disadvantage the representative plaintiffs. As others have mentioned, there is no problem of estoppel even if an issue is decided in the Herold action since the parties are not the same in the class action. On the other hand, giving the Herold plaintiffs the right to attend examinations of the driver and the witness pre-supposes that class counsel will take those steps; the Herold plaintiffs themselves cannot compel the witnesses or otherwise determine their own litigation strategy.

Furthermore, the statutory opt-out right preserves litigation autonomy for class members who wish to retain control of their own actions. While it is a weaker form of protection than the opt-in regime favoured by other jurisdictions, it is a core feature of the Canadian class action system. A stay of an individual action commenced almost two years before the class proceeding undermines the litigation autonomy that the Class Actions Act gives the Herold plaintiffs.

Finally, as the judge himself affirmed, class proceedings statutes “are not intended to prohibit related individual actions from proceeding in tandem with a class action.” It is inconsistent, therefore, to say that allowing the Herold action to proceed “would also undermine the policy objectives sought to be advanced by class actions.” The preservation of litigation autonomy for class members who wish to sue individually is one of the policy objectives of class actions. Courts should facilitate the preservation of individual litigation rights as vigorously as they protect the rights of absent class members.

Conclusion

Class actions’ highest purpose is to increase access to courts to class members for whom the doors of justice would otherwise remain closed, to borrow the Court’s language in Western Canadian Shopping Centres Inc v Dutton. Unfortunately, the result in Wasserman turns access to justice on its head. By depriving the Herold plaintiffs of control over their litigation for at least another year, access to justice is both delayed and denied. For the privilege of having to wait to opt out when and if the class action is certified, the Herold plaintiffs are now exposed to paying costs. The judge’s decision on costs has not yet been released.

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