Connelly v. Pacific National Exhibition, 2025 FC 722

ORDER AND REASONS

[1] This proceeding is a proposed class action. On this motion made in writing, the plaintiff seeks the Court’s approval to discontinue the proceeding under Rule 334.3 of the Federal Courts Rules, SOR 98/106, so she can pursue her claims in the courts of British Columbia.

[2] On April 16, 2024, the plaintiff filed a statement of claim in this Court. She served it on the defendant. She later amended her pleading and served the amended version. The amended statement of claim was filed on July 23, 2024.

[3] The amended statement of claim seeks compensation under section 36 of the Competition Act, RSC 1985, c C-34, for loss or damage caused by conduct that was allegedly contrary to sections 52 and 54 in Part VI of that statute. The plaintiff alleges that the defendant received undisclosed fees for tickets to certain events that were sold to members of the proposed class on the defendant’s website. The defendant denies all liability.

[4] In mid-July 2024, the plaintiff wrote to the defendant on several issues, including a concern that there “may not be tolling of a limitation period for non-Plaintiff class members on account of the representative plaintiff filing a Statement of Claim”. The plaintiff requested that the defendant enter into a tolling agreement.

[5] In late July 2024, the plaintiff provided the defendant with a draft tolling agreement, under which the parties would toll the limitation period for all putative class members as defined in the statement of claim, retroactive to the date of filing of that pleading.

[6] It appears that the defendant did not respond on this issue. Regardless of the status of communications, I understand that the parties did not enter into a tolling agreement.

[7] On October 4, 2024, the plaintiff filed a Notice of Civil Claim against the defendant in the courts of British Columbia (Jennifer Connelly v. Pacific National Exhibition, Vancouver Registry, No. SE246842) (the “BC action”). In her written representations on this motion, the plaintiff advised that her allegations in the BC action are nearly identical to her allegations in this proceeding.

[8] On October 18, 2024, the defendant delivered a statement of defence in this proceeding. The defendant advised the plaintiff that it intended to file a motion to strike the BC action as an abuse of process.

[9] On November 15, 2024, the plaintiff advised the defendant that she intended to discontinue this proceeding in favour of the BC action.

[10] On January 31, 2025, the plaintiff filed the present motion to approve a discontinuance, with no order as to costs. In response, the respondent confirmed that it takes no position on either request.

[11] Rule 334.3 provides that a proceeding “commenced by a member of a class of persons on behalf of the members of that class may only be discontinued with the approval of a judge”.

[12] This Court has held that Rule 334.3 must be read in light of Rule 165: Dennis v Canada (Attorney General), 2017 FC 1011, at para 3. Under Rule 165, a plaintiff is entitled to discontinue all or part of a proceeding by serving and filing a notice of discontinuance. In a typical Federal Court action, the plaintiff may do so as of right and without the consent of the opposite party or approval of the Court, although the plaintiff may have to bear some costs.

[13] The basis of this motion for approval under Rule 334.3 is the plaintiff’s submission that the discontinuance of this proceeding will not prejudice the proposed class members, because their interests are protected by the proposed class proceeding in British Columbia (citing Dennis, at paras 3-7; Germa v Canada (Attorney General), 2012 FC 654, at paras 7-15). She argued that the choice of forum should be left to her and her counsel (citing Germa, at para 14).

[14] The plaintiff’s underlying concern that led to the proposed discontinuance is that the Federal Courts Rules might not protect putative class members from the application of a limitation period between the filing of the statement of claim and the date of certification of the class proceeding: see Jacques v. Canada, 2024 FC 851, at paras 60-63, 77. The plaintiff advised that she filed the BC action to protect the interests of other putative class members. She submitted that sections 38.1 and 39 of the Class Proceedings Act, RSBC 1996, c 50, will protect their potential claims from limitations issues arising from the further passage of time. The plaintiff also advised that she included a cause of action in unjust enrichment in the BC claim. According to the plaintiff, doing so will avoid the defendant’s objection that this Court has no jurisdiction over that claim in this proceeding.

[15] I agree with Justice Barnes in Germa that, unless the Court has a concern about meaningful prejudice to the best interests of the putative class members, the Court should grant approval to discontinue a proceeding under Rule 334.3 if the plaintiff chooses to prosecute the class members’ claims in another Canadian court of competent jurisdiction. However, the onus is on the plaintiff to show that the proposed discontinuance will not cause such prejudice. I accept that the plaintiff could do so, at least in part, by demonstrating that it is in the best interests of the class members to proceed in the other forum.

[16] The initial evidence on this motion was an affidavit that merely attached correspondence between the parties’ respective counsel. At the Court’s invitation, the plaintiff filed a supplementary affidavit attaching a copy of the Notice of Civil Claim filed in the BC courts.

[17] On review of the two pleadings, I am satisfied that the BC action was commenced on October 4, 2024, and that the plaintiff’s allegations in the two actions are substantially the same. In addition, I accept that sections 38.1 and 39 of the BC Class Proceedings Act may (depending on certain future events) protect the interests of putative class members against the passage of time for the purposes of limitation periods, which may be of benefit to class members. The plaintiff’s pleading filed in BC also relied on provisions in limitations statutes, namely the Limitation Act, SBC 2012, c 13, paragraph 8(d), and the Limitation Act, 1996, c 266, subsection 6(4).

[18] On that basis, there is no evident prejudice to the proposed plaintiff class if the proceeding filed in this Court is discontinued.

[19] The motion is granted. The Court approves the discontinuance of this proceeding by the plaintiff, which may be effected by the usual filing at the Registry.

[20] No costs shall be payable arising from the discontinuance or on this motion.

ORDER in T-920-24

1. The Court approves the plaintiff’s proposed discontinuance of this proceeding.

2. There is no costs order for this motion or arising from the discontinuance.

FEDERAL COURT

SOLICITORS OF RECORD

SOLICITORS OF RECORD: