In InvestorCOM Inc. v. L’Anton, 2025 BCCA 40, issued on Jan. 27 and published online on Feb. 5, Justice Susan Griffin held that the potential overlapping and duplicated claims crystallize only if and when each action becomes certified as a class action covering a broad number of claims for a class of people.
“This decision is a welcome development for the plaintiff class action bar in clarifying that class actions filed in B.C. cannot be dismissed as an abuse of process merely because another putative class action was filed first elsewhere in Canada,” said Theodore Charney of Charney Lawyers, counsel for the plaintiff.
In May 2023, the respondent plaintiff, Martin L’Anton, a former customer of the appellant, Mackenzie Financial Corp., received notice from Mackenzie that his personal information, including his social insurance number, had been stolen by hackers.
The relevant data was allegedly stored on the servers of appellant InvestorCOM Inc., a Toronto-based regulatory compliance software provider.
L'Anton brought a proposed national class action against the appellants, alleging that cybercriminals accessed and stole information from the servers of InvestorCOM about customers of MacKenzie, including social insurance numbers (SIN) along with their MacKenzie account numbers, names, and addresses.
A parallel action had also been commenced in Ontario advancing similar claims and seeking certification as a national class action.
The appellants sought to have the action initiated by the respondent stayed as an abuse of process, arguing in separate applications that the claim served no legitimate purpose and overlapped with the Ontario action.
In L’Anton v. Mackenzie Financial Corporation, 2024 BCSC 1136, a chambers judge dismissed both applications.
The chambers judge cited Fantov v. Canada Bread Company, Limited, 2019 BCCA 447, which concerned a proposed B.C. class action that was commenced despite the fact a proposed national class action had been commenced in Ontario just over two months earlier and was more advanced.
In Fantov, the B.C. Court of Appeal held that an application for a stay of the B.C. proceeding on the grounds that there could be duplication was premature, as the arguments about duplication could be raised at the certification hearing.
Mackenzie and InvestorCOM appealed the decision, arguing that the chambers judge erred in failing to stay the action.
Justice Griffin noted that it is not uncommon for different plaintiffs in different provinces to commence proposed class actions over the same wrong, and that the mere existence of the possibility of duplication does not establish an abuse of process.
She further noted that the issue of how multiple multi-jurisdiction class actions in Canada should be managed was addressed by the Uniform Law Conference, which made certain recommendations that have been incorporated into British Columbia’s Class Proceedings Act (BCCPA).
“In short, the structure of the BCCPA addresses concerns about the possibility of duplication of overlapping class actions at the time of the application for certification of the proceeding as a class action, not by way of preliminary application,” the judge wrote.
The court noted that under s. 4.1(1)(b) of the Act, a chambers judge may refuse to certify a class proceeding if the court is of the view it should proceed in another jurisdiction.
“This allows a judge to consider, at the time of certification, the issues raised by having multiple overlapping class actions, including whether one action is an unnecessary duplication of another, and whether it is preferable to have some or all of the claims resolved in another proceeding,” Justice Griffin wrote.
The court noted that the chambers judge had addressed the motives of L’Anton and rejected the appellants’ assertion that his motives were improper at the time the action was started.
Justice Griffin highlighted that the action was commenced within the same year as the data breach and that it was commenced just over two months after the Ontario action.
The judge added that the action advanced both a wider scope of claims and claims against InvestorCOM, as compared to the Ontario action, which initially was commenced only against Mackenzie.
She also noted that L’Anton was not represented by the counsel for the plaintiff in the Ontario action.
“In the present case there are simply no hallmarks of abuse of process in the commencement and advancement of the B.C. claim when one considers the timeline of steps taken to file and advance the claim, and the scope of the claim,” she wrote.
The judge also noted that it has been recognized by the Court of Appeal that the approach to data breaches in Canada may vary between provinces and that the costs regime under class proceedings legislation varies among the provinces.
The court held that there were legitimate reasons for the plainitff to pursue relief in B.C. rather than in Ontario.
Justice Griffin observed that the appellants arguments stood for the proposition that if there are two parallel class actions proceeding to certification, one should be stayed as an abuse of process prior to a certification hearing.
“Further, the effect of their position is that it should be the defendants who get to choose which one should be stayed. I do not accept that argument,” the judge wrote.
The judge noted that the appropriate stage to determine whether one proposed class action should be stayed in favour of another in a different Canadian jurisdiction, based solely on the similarity of claims, is during the certification hearing rather than through a preliminary application.
Justice Griffin dismissed the appeal. Justices Janet Winteringham and W. Paul Riley concurred in the decision.
Charney, who is serving as counsel for L’Anton, said that when overlapping class actions are filed in different provinces, defendants may initiate preliminary motions to stay the subsequent case by alleging an abuse of process.
He noted that this practice has been criticized by courts as amounting to a “first to file” rule, which does not exist outside of Quebec.
“In L’Anton the B.C. Court of Appeal has effectively shut down this practice of preliminary abuse of process motions in B.C. that are based solely on duplication in the theory of the claim, finding there can be no duplication until one of the putative class actions is certified,” he told Law360 Canada.
Counsel for the remaining parties were not immediately available for comment.
Counsel for InvestorCOM were Amanda Quayle of McDougall Gauley LLP and Marko Vesely of Lawson Lundell LLP.
Counsel for Mackenzie Financial Corp. were Cathy Beagan Flood and Joshua Hutchinson of Blake, Cassels & Graydon LLP.
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