Overview
Saskatchewan’s Court of Appeal has held that while multiple or duplicative proceedings are generally undesirable, they are not prohibited. In the decision of Herold v Wassermann,[1] the Court set out the factors to be considered in determining whether an individual action should be permitted to proceed at the same time as a class action.
The lawsuits which lead to this appeal arise out of the tragic April 6, 2018 bus accident involving the Humboldt Broncos hockey team. Shortly after, the parents of Adam Herold, Jaxon Joseph, Logan Hunter, Jacob Leicht and Mark Cross, all of whom died in the accident, commenced an action against a limited number of named defendants alleged to have caused the crash (the “Herold Action”). Almost two years after the accident, a group consisting of Jacob Wassermann, a surviving player, and the parents of Dayna Brons, the Broncos’ Athletic Therapist who passed away from injuries sustained in the crash, commenced a lawsuit they are seeking to have certified as a class action (the “Brons Action”).
In January 2021, the Brons Action plaintiffs applied for an order that the Herold Action be stayed until a decision was made on whether the Brons Action would be certified as a class action. The Chambers judge ordered that the Herold Action be temporarily stayed, resting his decision on the principle that a multiplicity of proceedings could impair the judicial process and undermine the objectives of class actions.[2]
The Court of Appeal in Herold v Wassermann reversed the decision of the Chambers judge, finding that it should not be presumed that a class action is the preferential forum for adjudicating a claim, just because such a class proceeding has been commenced. A court must weigh the competing interests and potential prejudice to both the applicant and the respondent when making the decision to grant or refuse a stay of an individual action where a class action, raising similar issues, has been commenced.
Establishing the framework for a stay request in light of a proposed class action
The RJR-Macdonald [3] framework is generally applied when considering requests for a stay. However, in Wassermann, the Court of Appeal arrives at a modified RJR-MacDonald framework which applies in assessing whether an individual action should be stayed while a proposed or certified class action proceeds. This modified framework requires courts to look at: (1) the prejudice or injustice the applicants will suffer if the application is denied; (2) the prejudice or injustice the non-applicant party will suffer if their action is stayed; and (3) a balancing of these competing interests.[4]
The Court emphasised that the third step is the core of this analysis.[5] Additionally, depending on the circumstances of the actions, it may be appropriate to weigh other relevant considerations, which had been outlined in Hamm v Canada (Attorney General).[6] Those considerations include:
- The policy objectives that underlie class proceedings, including facilitating access to justice, judicial economy, behaviour modification and the rights of claimants to litigation autonomy.[7]
- Whether the requested stay will avoid unnecessarily duplicative proceedings.[8]
- The bona fides of the action subject to the potential stay, the ability of the plaintiff to proceed with that action, the degree of overlap between the competing proceedings and the terms of the proposed stay including its duration.[9]
Given that a stay should be granted only if necessary to protect the applicant’s interests, a court should also assess whether alternative mechanisms exist that would protect the interests at stake in the application.[10]
Determining the prejudice or injustice to each party if a stay is ordered or refused
The first and second steps of the modified RJR-Macdonald framework invite the court to assess, from the perspective of each competing party, what consequences may follow if a stay is ordered or refused. The severity of any consequence will also be considered and it appears that each party is responsible for raising how the stay, if ordered or refused, would prejudice them legally and personally. It is at these steps that the Court will also consider justifications for ordering a stay presented by the applicant party.
Weighing the competing interests of each party
At the third step, the court must balance the competing interests of the prejudice to the applicant and respondent parties. The Court of Appeal provided a series of factors that inform this exercise.
First, the Court is to examine the significance of the effect of the stay.[11] This consideration involves how obstructed the stayed party would be in pursuing their action.[12] A party’s right to access the court is not to be interfered with lightly.[13] As such, the duration of the stay is a relevant consideration. The Court considered the indefinite nature of the stay, and noted there was a risk that the stay would cause a delay of months or even years.[14] If the stay was allowed, then it would consequently delay reaching a final resolution of the Herold Action.[15]
The second factor requires consideration of whether there is a risk of inconsistent verdicts on issues of ultimate liability.[16] As identified in Vaeth v North American Palladium Ltd., inconsistent results may be embarrassing to the administration of justice and can harbour feelings of unfairness when similar actions result in different outcomes.[17] The Court acknowledged that even where this risk exists, if it remains far down the line, any issues can be re-evaluated at a later time.[18]
Third, the Court of Appeal considered whether there was reason to believe that the applicant party’s action should be preferred based on the legal issues for determination.[19] If a particular action is to be selected as the sole forum for the claim, an explanation should be provided by the Court that supports the action of the applicant as being superior to the competing action.[20]
Fourth, it was noted that various mechanisms exist to alleviative the effects of multiple actions, which could result in less prejudicial effects than ordering a stay.[21] These alternative mechanisms should be considered.[22] The non-exhaustive list of examples provided by the Court of Appeal included having one party or the other seek to intervene in the other action at particular junctures, managing the two actions so that applications common to both actions are heard by the same judge at the same time, or having the actions tried at the same time, or one after the other as contemplated in Rule 3-81(1)(b) of The King’s Bench Rules.[23]
Fifth, the Court of Appeal suggested that judges should have regard for other cases where a stay was granted, and consider whether those cases address similar circumstances.[24] Other cases have highlighted potential concerns that have grounded the decision to order a stay.[25] These potential concerns include where the party whose action is the subject of the stay application lacks resources to prosecute their claim, where that party has a small or trifling claim, and where that party seeks to abuse court processes.[26]
In Wassermann, the Court carried out the weighing exercise by reviewing the background circumstances of both claims.[27] The facts of this particular case illustrated the prejudice against the Herold Action plaintiffs. For instance, they sought to have their claim move forward without the potentially extensive delays that may be caused by the procedural aspects of a class action.[28] They also desired to keep a focused claim, whereby only those defendants who “carry the highest level of responsibility” are sued and less impacted individuals and entities are not included.[29]
The position of the Brons Action plaintiffs was that if the Herold Action was allowed to proceed, issues might be decided that could impact their rights.[30] This reasoning ultimately related back to the principle of avoiding multiple proceedings over the same subject matter, which was undermined in the face of a claimant’s extant right to pursue their claim through an individual action.
Ultimately, the Court of Appeal held that the justifications for the stay presented by the Brons Action plaintiffs were not enough to outweigh the concerns raised by the Herold Action plaintiffs, even for a temporary stay.[31]
Key takeaways
The Court of Appeal’s judgment in Wasserman indicates that multiple or partly duplicative proceedings are not automatically prohibited. In the appropriate legal and factual circumstances, multiple actions may move forward at the same time. In these circumstances, the courts should utilize the other tools provided by the rules of civil procedure for avoiding unnecessary duplication and the risk of inconsistent verdicts. Those tools include intervention by parties in the related proceedings at particular junctures, case management by the same judge, and/or having the actions tried concurrently or consecutively.
As for determining whether to order a stay or permit multiple proceedings, the courts are to weigh the competing interests of the parties within a modified RJR-MacDonald framework. This framework requires courts to look at: (1) the prejudice or injustice the applicants will suffer if the application is denied; (2) the prejudice or injustice the non-applicant party will suffer if their action is stayed; and (3) a balancing of these competing interests.
If you have any questions, please reach out to a member of Miller Thomson’s Class Actions Group.
[1] Herold v Wassermann, 2022 SKCA 103, 2022 CarswellSask 425 (WL) [Wassermann].
[2] Wassermann v Saskatchewan (Highways and Infrastructure), 2021 SKQB 204, 16 CCLI (6th) 63.
[3] See RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311.
[4] Wassermann at para 60.
[5] Ibid.
[6] Wassermann at para 61; Hamm v Canada (Attorney General), 2021 ABCA 329, [2021] 12 WWR 703.
[7] Wassermann at para 61.
[8] Ibid.
[9] Wassermann at para 61.
[10] Wassermann at para 62.
[11] Wassermann at para 81.
[12] Ibid.
[13] Ibid.
[14] Wassermann at para 83.
[15] Wassermann at para 84.
[16] Wassermann at para 85.
[17] Vaeth v North American Palladium Ltd., 2016 ONSC 5015 at para 37, 2016 CarswellOnt 12742 (WL); see Wassermann at para 34.
[18] Wassermann at para 85.
[19] Wassermann at para 86.
[20] Ibid.
[21] Wassermann at para 87.
[22] Ibid.
[23] Ibid.
[24] Wassermann at para 88.
[25] Ibid.
[26] Ibid.
[27] See paras 64-75.
[28] Wassermann at paras 70 and 72.
[29] Wassermann at para 72.
[30] Wassermann at para 77.
[31] Wassermann at para 90.
