British Columbia court rejects ‘unusual’ change to class action lawsuit

These allegations have not been proven.

In 2022, the Supreme Court of British Columbia refused to certify the case as a class action, ruling that the MM Fund did not have standing to file a class action in British Columbia because it was not a resident of the province. The court ordered the Fund to strike the class action from its pleadings.

After an appeal of that decision was dismissed by the British Columbia Court of Appeal on April 30, the fund filed a class action lawsuit in Ontario, reiterating the allegations in its original lawsuit in British Columbia.

The court in British Columbia then requested that the case be transferred to Ontario.

“MM seeks this relief because it wishes to continue this action in Ontario in conjunction with the class action lawsuit recently filed there,” the British Columbia court stated in its decision.

The court rejected the fund’s request, calling it “highly unusual” because it was made by a plaintiff in a proceeding. Requests for a change of jurisdiction are usually made by defendants, it said.

“Counsel advises that they have not found any decision to date in which a plaintiff such as MM has chosen BC as the forum for this litigation and later decides that it wishes to have the matter heard in another court,” the court said, adding that the unprecedented nature of the motion is reinforced by the fact that MM has already argued that the case belongs in BC because Excelsior is incorporated and regulated in BC, even though its mining operations are located in Arizona.

“MM says it is based in Ontario and now downplays its ties to BC, as it has argued previously in this proceeding,” the court noted. It said that “the real basis for MM’s ‘about-face’ and conflicting positions on this unusual motion concerns a statute of limitations issue and MM’s belief that this BC action could in any way assist in the conduct of the class action proceedings in Ontario.”

By consolidating the ongoing case in British Columbia with the proposed class action in Ontario, the fund hoped to avoid a possible dismissal of the Ontario case due to the two-year statute of limitations for civil claims, the court said.

However, the Fund’s application was rejected on the grounds that there were “serious concerns about MM’s changing and contradictory positions, which appear to have purely strategic reasons”.

The court said it was not clear whether allowing the British Columbia case to be transferred to Ontario would affect a possible statute of limitations defense in that case.

“Although MM’s about-face in the litigation is not forum shopping in the true sense of choosing a jurisdiction for the purpose of legal advantage, it smacks of injustice and abuse of process given the history of this matter,” the court said.

“MM has failed in its burden to demonstrate that Ontario is clearly the more appropriate forum to decide the issues in these proceedings,” it concluded in rejecting the Fund’s application. “On the contrary, the overall circumstances suggest that these proceedings should continue.”