Canada: Saskatchewan Court Of Appeal Upholds Certification, Finds Attempted Appeal An Abuse Of Process

Summary

The Saskatchewan Court of Appeal recently confirmed that parties don't get another "bite at the cherry" in Saskatchewan Medical Association v Anstead, 2016 SKCA 143. The Saskatchewan Medical Association's (the "SMA") application for leave to appeal on one decision was dismissed; however, the SMA then attempted to appeal a different but related decision using the same grounds of appeal. The Court of Appeal struck the second appeal as an abuse of process.

Background

Dr. Anstead, the representative plaintiff applied for certification of a class of physicians who were surgical assistants and who earned more than 50% of their income by providing surgical services (the "Class").  The Class alleged that the SMA, in negotiating a payment schedule that differed between full-time and part-time surgical assistants, where they provided the same or similar services, breached its common law fiduciary duties and obligations of fairness and fair representation in negotiating the fees for the members of the class.

Prior to the certification application being heard, the SMA brought an application under Rule 3-14 of The Queen's Bench Rules to dismiss the claim for lack of subject matter jurisdiction.  The SMA argued that the common law did not apply to the subject matter of medical compensation and that the underlying Act and Regulations were a complete code that ousted the jurisdiction of the court on the subject matter. The SMA applied to have its application heard in advance of the certification application, however the hearing judge ordered SMA's Rule 3-14 application be heard and determined at the same time as the certification application.

Ultimately, the hearing judge dismissed the SMA's Rule 3-14 application (the "Rule 3-14 Decision") and concluded that the requirements of section 6(1) of the Class Actions Act, SS 2001, c C-12.01 (the "CAA") were met and certified the action (the "Certification Decision").

The Appeals

The SMA sought leave to appeal the Certification Decision and simultaneously filed a notice to appeal the Rule 3-14 Decision. Three of the six grounds of appeal raised by SMA were virtually identical as between the Certification Decision and the Rule 3-14 Decision. The application for leave to appeal was heard first.

At the application for leave to appeal, the Chambers judge determined that the arguments for leave to appeal were the same arguments that had been raised at the certification hearing and SMA's application for leave to appeal was dismissed.

Following the application for leave to appeal, Dr. Anstead applied to strike the Rule 3-14 Decision's appeal on a number of grounds, arguing firstly that the jurisdiction issue was subsumed in the cause of action analysis, and as such leave to appeal was required, and because SMA did not obtain leave to appeal, the appeal should be struck. Secondly, he argued that the appeal was res judicata or an abuse of process on the basis that even if the subject matter did not completely overlap or was not completely subsumed in the s. 6(1) analysis, the SMA relied upon the same arguments that were already rejected on the application for leave to appeal. Finally, Dr. Anstead argued that the decision with regard to jurisdiction was interlocutory in the sense that it did not finally dispose of the claim and leave was required on that basis.

Analysis

The Court of Appeal found that determining the appeal of the Rule 3-14 Decision on its merits would constitute an abuse of process without SMA having first obtained leave. The Court held that the issues under s. 6(1)(a) of the CAA and Rule 3-14 were not identical, but were substantially similar and closely connected. The Court found this in part is due to the way SMA had treated the issues and made identical, or near identical, arguments for each. The issues raised had been the "core issue" with respect to both the s. 6(1)(a) CAA determination, Rule 3-14 determination, the proposed appeal of the Certification Decision and of the appeal being heard. Relitigation of an issue can be precluded under the abuse of process doctrine even where the requirements for issue estoppel are not met but where the issues are sufficiently similar.

Implications

If an application for certification is heard simultaneously with an application to strike the action for want of subject matter jurisdiction, you can only successfully appeal either decision if you successfully appeal both decisions. Otherwise, you'll end up with inconsistent verdicts, and naturally, the courts are loathe for this to transpire.

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