Judge calls Telus’ motion under s. 5(6) of Ontario Class Proceedings Act ‘one of first impression’
The Ontario Superior Court dismissed a motion by Telus International (Cda) Inc. (Telus Digital) to stay a proposed global securities class action under s. 5(6) of Ontario’s Class Proceedings Act, 1992 (CPA), despite a similar proceeding pending in BC.
The plaintiff in Yee v. Telus International (Cda) Inc., 2026 ONSC 3165, bought and held 14,400 subordinate voting shares from Telus Digital within the period from Feb. 9, 2023, to Aug. 1, 2024 (the Ontario class period). He experienced a loss of over $20,000.
Before the Ontario Superior Court, the Ontario plaintiff proposed to bring a global securities class action against the defendants: Telus Digital and its former directors and officers who signed and certified certain documents as accurate and free of misrepresentation.
In his statement of claim on Jan. 28, 2025, the Ontario plaintiff alleged against Telus Digital:
The claim asserted that Telus Digital issued public corrections for the misrepresentations on May 9, 2024 and Aug. 2, 2024.
Under s. 5(6) of the CPA, the defendants moved to stay the action for involving “the same or similar subject matter and some or all of the same class members” as a proposed global securities class action in BC.
“The motion is apparently one of first impression; no other motion has yet been decided under section 5(6) and related provisions, which were enacted as amendments to the CPA in 2020,” wrote Judge Edward M. Morgan for the Ontario court.
The defendants’ counsel noted that the addition of these provisions aimed to tackle duplicative or overlapping multijurisdictional class proceedings commenced in different Canadian provinces.
The BC plaintiff supported the defendants’ stay motion. On Dec. 12, 2024, before the Supreme Court of British Columbia, the BC plaintiff initiated the BC action via a notice of civil claim and petition for leave to commence an action.
While the causes of action, class period, and number of defendants differed, the BC action’s central allegations mostly concerned the same representations and public corrections as the ones raised in the Ontario action.
The Ontario Superior Court of Justice dismissed the defendants’ motion under s. 5(6) of the CPA. First, the court addressed the objectives of a s. 5(6) motion, which included promoting judicial economy.
The court noted that a sequencing motion and an appeal of the sequencing decision delayed the BC action. The court said it did not know how and when the next steps would proceed.
By contrast, the court highlighted the following steps in the Ontario action:
The court recognized the significantly reduced risk of differing judgments when the proceedings in one jurisdiction were far ahead of those in the other.
“From a practical perspective, two actions can, in the right case, proceed on parallel tracks,” Morgan said. “One of them will resolve first by trial or by settlement. At that point, the matter will present various ways to conclude in both jurisdictions. The burden on the Defendants will ultimately resolve in one jurisdiction or the other.”
Next, the court went over the relevant factors in a s. 5(6) motion, including the alleged basis of liability in each action.
The court described the oppression claim in the BC action as “an extra piece of baggage that is not needed to haul the freight that the class requires” and as a possible liability to that action’s plaintiffs and proposed class.
On the other hand, the court ruled that the Ontario action was more advanced and that the Ontario claimant had put the best foot forward.
“A telecommunications giant on the cutting edge of technology, that operates in 45 countries with annual revenues topping $200 billion, is a formidably resourced and capable litigant in any jurisdiction,” Morgan said.
The court added that Telus Digital would commit to taking advantage of its technology to ensure significant participation levels in the Ontario action, regardless of the BC action’s progress.
In the circumstances, the court held that allowing the plaintiff and putative class to prepare their best litigation strategies and resources would assist in ensuring due consideration of all parties’ interests in the relevant jurisdictions and serving the ends of justice.
Lastly, the court extended the defendants’ timetable for serving their responding record. The court found a follow-up case conference necessary to further discuss the hearing date and timetable moving forward.
