“The plaintiff is applying for a stay of proceedings.” These are not words commonly heard in a courtroom.
Yet in Roberge v Revera 2025 ABKB 416, the plaintiff applied for a stay of her own proposed class action and was successful.
Case history
What makes a plaintiff apply for a stay of proceedings? In this case, it started as a proposed class action claim of gross negligence against a seniors’ home during the COVID pandemic. The putative plaintiffs were the current residents of a seniors home or former residents who passed away from a COVID-19 infection. In addition to the claim of gross negligence, the plaintiffs alleged breach of:
Moreover, the plaintiff challenged the validity of the COVID-19 Related Measures Act.
Similar cases with similar issues
In this decision, the Court considered two other cases involving alleged COVID-related deaths in the long-term care facilities in Alberta and Ontario. The Ontario action has already gone through the certification process for the issue of gross negligence, and the defendant in the other Alberta proceeding has consented to certification.
Both the Alberta and Ontario actions included claims of other breaches, but only the issue of gross negligence survived the certification process.
- The Ontario certification decision struck all other claims except for gross negligence.
- The Alberta certification proceeded through a consent order for certification after the other breaches and challenge of the COVID-19 Related Measures Act were dropped from the claim.
Even if the applicant for a stay of a class action proceeding is the plaintiff, all aspects of the following test must be satisfied:
a) Are the issues in the other action(s) substantially similar to the subject action?
b) If so, would it be oppressive, vexatious or abusive to the moving party if the stay is not granted?
c) Will there be an injustice visited on the non-moving party if the stay is granted?
In this case, the Court stated that the general rationale for granting a stay is to maximize the efficient use of its’ and the parties’ resources.
Class action test to stay
a) Are the issues in the other action(s) substantially similar to the subject action?
Ultimately, the justice outlined that the issues in the Ontario and Alberta actions were deemed to be substantially similar to the core issues in the Roberge action.
The Court found that the common point between the legal actions is the issue of determining whether the activities and/or omissions of the long-term care facilities were enough to be grossly negligent.
b) If so, would it be oppressive, vexatious or abusive to the moving party if the stay is not granted?
In this instance, the second part of the test is framed as whether it would be unjust for the plaintiff to refuse the request for stay. Here, the Court did not want to force the plaintiff to continue an action while other actions had gone through class action certification for similar issues.
The Court determined that the other related actions were far enough along in the process that the resultingdecisions might allow for a consent certification in this case, which would save time and money.
c) Will there be an injustice visited on the non-moving party if the stay is granted?
It was noted that the defendants were in a unique position: they needed to show that a delay would be unjust and disadvantage them if they were not defending the action now.
The Court went on to explain that—even though it may take the Ontario and the other Alberta actions six years to get to trial—the findings on the common issues in those proceedings will be understood before the damages. However, this will not unduly prejudice the defendant in this action.
Decision
The Court ultimately decided that the issues in common with the Alberta and Ontario actions were similar enough to this class action that a stay would allow the parties to save time and money.
The plaintiff’s request to stay was determined not to be unjust to either party, and this was to be applicable until the gross negligence issue would be decided in either the Ontario or Alberta actions, whichever is earlier.
Should you have any questions or need further information on this insight or on class actions, please contact Don Dear, K.C., in our Calgary office who can help you understand how we can help.