Common Ground? Class Action Updates
BC Court Denies Application to Stay a Class Action Appeal in Order to Avoid “Litigation in Slices”
Date: February 8, 2023
In Facebook, Inc. v. Douez, the Supreme Court of British Columbia denied an application by the representative plaintiff (Ms. Douez) to stay an appeal by Facebook of a class action order with respect to liability. The Court noted that while there is a general aversion to “litigation in slices,” it may be appropriate to permit an appeal to proceed where it would remove the need for further proceedings in the trial court.
Ms. Douez brought a class action against Facebook as a result of its use of class members’ names and images without their knowledge or consent. On a summary trial application, the Court found in favour of the certified class on several common issues related to liability, but determined that common issues relating to damages required a conventional trial. Facebook appealed this order.
In support of her request to stay the appeal, Ms. Douez advanced several reasons why Facebook’s appeal should be held in abeyance until damages had been determined. Those reasons included avoiding litigation in slices, ensuring a more convenient and economical process for the parties and avoiding greater expenditure of scarce judicial resources.
Facebook’s position was that it was entirely appropriate for the liability appeal to proceed as presently scheduled.
The Court first identified the two factors to be considered in deciding whether to hold an appeal in abeyance pending the outcome of other proceedings: (1) concern about the efficient management of judicial resources and litigation in slices, and (2) balancing prejudice between the parties.
It noted while there is a general aversion to permitting “litigation in slices,” appellate courts have recognized there will be circumstances in which it is appropriate to permit an appeal to proceed notwithstanding all issues in the case have not been determined by the trial court. One of those circumstances is where the outcome of the appeal will dispose of the action and thus remove the need for further proceeding in the trial court.
In the present case, if the appeal proceeded and Facebook achieved complete success, Ms. Douez’s action would be dismissed and the need for a damages trial would disappear. Even where Facebook was only partially successful, the length, complexity, and cost of the damages trial would be reduced.
The Court dismissed the stay application, finding this appeal was not one which raised concerns with respect to litigating in slices. It would not be more convenient and economical for the liability appeal to be held in abeyance to await the outcome of the damages trial and any appeal that may arise from the damages order. To the contrary, allowing the liability appeal to proceed as presently scheduled caused no inconvenience or unnecessary expense to the parties, did not prejudice Ms. Douez, and avoided potential prejudice to Facebook. In the circumstances, it was an effective and efficient use of judicial resources.
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