Ammazzini et al v. Anglo American PLC et al, 2019 SKQB 60

This recent decision from the Court of Queen’s Bench for Saskatchewan arose in the context of overlapping multijurisdictional Canadian class actions alleging competition law violations in the production and sale of gem grade diamonds. Unlike the United States, which has a multidistrict litigation panel process, Canada has no national legally binding process for coordinating cases started by multiple plaintiffs’ counsel in multiple provinces.

Background

This decision of the Saskatchewan Queen’s Bench was issued on the defendants’ application for the permanent stay or dismissal of a proposed class action in Saskatchewan. The Saskatchewan stay application was brought following a national settlement reached between the defendants and a consortium of plaintiffs’ counsel who were working together to address competition law claims across Canada regarding gem grade diamonds. Counsel for the plaintiffs in the Saskatchewan action, Merchant Law Group LLP (MLG), were not part of the national plaintiffs’ consortium, and the Saskatchewan plaintiffs were not parties to the national settlement agreement.

Following hearings before the courts of all of the provinces in which the plaintiffs’ consortium had commenced actions — British Columbia, Ontario and Québec — the national settlement was approved as being fair, reasonable, and in the best interests of class members. The Ontario class consisted of all residents of Canada except for residents of British Columbia and Quebec. The national settlement agreement reached with the plaintiffs’ consortium was intended to bind all class members across Canada who did not opt out of the national settlement. It was a term of the national settlement that the Saskatchewan action be permanently stayed or dismissed. Saskatchewan class members would be covered by the national settlement as members of the Ontario class.

The Saskatchewan Action

Daniel Ammazzini and Olson Goldsmiths Inc. were the representative plaintiffs in a proposed multijurisdictional action commenced under the Class Actions Act. They contended that the defendants, Anglo American PLC et al, wrongfully restricted the global supply of gem grade diamonds so as to artificially increase their price. The Saskatchewan plaintiffs sought to certify a claim on behalf of Canadians resident in all provinces, except British Columbia, who had paid what they allege were inflated prices for diamonds.

The Saskatchewan proposed class action mirrored the class actions commenced by the plaintiffs’ consortium in Ontario, British Columbia and Quebec. All of those consortium cases were settled on a national basis. The Ammazzini case, commenced by MLG in Saskatchewan, sought certification of a national class and alleged violations of Canadian competition law in the production and sale of gem grade diamonds; thus, Ammazzini overlapped entirely with the Ontario action, which was settled as part of the national settlement.

It was a term of the national settlement that the Ammazzini action in Saskatchewan be permanently stayed or dismissed. From the defendants’ perspective, as long as the Saskatchewan action remained “live,” the release in the national settlement would not be effective and their exposure would not be resolved. The route to address that was an order permanently staying or dismissing the Ammazzini action.

Prior to the national settlement agreement being reached, the Saskatchewan Court of Queen’s Bench had issued a conditional interim stay of Ammazzini pending the determination of the certification motion in the Ontario action; that interim stay decision was upheld by the Saskatchewan Court of Appeal in 2016. The national class action in Ontario was certified for settlement purposes as part of the settlement approval process.

Once courts across Canada approved the national settlement, the final step was for the defendants to seek the permanent stay or dismissal of Ammazzini.

Court of Queen’s Bench Decision

In reviewing and considering the factors relevant to settlement approval, Justice G. M. Currie of the Court of Queen’s Bench for Saskatchewan found the national settlement met the test for approval, while noting that he was not required to approve the settlement. Justice Currie recognized that the defendants wanted to resolve their exposure to litigation in Canada, that the plaintiffs’ consortium and the defendants engaged in years of hard-fought litigation in the context of the consortium actions, and that the settlement provided benefits to class members across Canada, including Saskatchewan residents.

Justice Currie held that the Saskatchewan action was duplicative of the Ontario action and served no useful purpose, and concluded that the action constituted an abuse of process and should be stayed permanently. Notably, the Court of Queen’s Bench made an order for costs in favour of the defendants.

On March 15, 2019, the Saskatchewan plaintiffs filed an application for leave to appeal with the Court of Appeal for Saskatchewan.

The significance of the Ammazzini decision lies in the willingness of the Saskatchewan court to tackle the vexing problem of overlapping class actions and to accept a practical solution to the lack of a formal process to resolve multidistrict class action litigation in Canada. This decision is important to the class actions bar, as well as to members of the judiciary who are called upon to manage overlapping multijurisdictional class actions in Canada.

Katherine L. Kay, Danielle Royal and Sinziana Hennig of Stikeman Elliott LLP represented the defendants, Anglo American PLC and De Beers Canada Inc.

E. F. Anthony Merchant, Q.C., and Iqbal Brar of Merchant Law Group LLP acted for the Saskatchewan plaintiffs.

David G. A. Jones and Naomi J. Kovak of Camp Fiorante Matthews Mogerman LLP acted for Ontario plaintiff Kirk Brant.

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