Court File and Parties

Court File No.: CV-18-00611771-00CP Date: 20200420 Superior Court of Justice - Ontario

Re: Mark Reynolds, Plaintiff – AND – Hershey Canada Inc., The Hershey Company and Hershey Chocolate & Confectionary Corporation, Defendants

Before: E.M. Morgan J.

Counsel: Adam Tanel, for the Plaintiff Scott Maidment, Nicole Rozario, and Samantha Gordon, for the Defendant, Hershey Canada Inc.

Heard: April 20, 2020

Case Conference

[1] This proposed class action was commenced on December 28, 2018. It entails allegations of human rights abuses by the Defendants in the harvesting and manufacture of chocolate in West Africa and sold in Canada.

[2] The putative class is composed of Canadian consumers of the Defendants’ chocolate products. The Defendant, Hershey Canada Inc. (“Hershey”), has been served with the claim and is defending it; the other two Defendants have not been served and have not attorned to Ontario jurisdiction.

[3] The Plaintiff has commenced what I understand to be virtually the same law suit in British Columbia. As a result, Hershey has brought a motion for an anti-suit injunction.

[4] It now turns out that the Plaintiff wants to discontinue his action in Ontario, presumably to proceed with the same action in B.C. Apparently, the Plaintiff has had difficulties arranging for funding, and so would be in a better position to proceed in B.C. since it is a no-costs jurisdiction. His counsel therefore seeks the court’s permission under section 29 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 to discontinue the Ontario action.

[5] Hershey does not think this is the proper way to proceed, and would like to go ahead with its anti-suit injunction motion. Its view is that the Plaintiff should pursue his action where he started it and where the defense has already started down the road in preparation for the certification motion. It proposes to continue with the anti-suit injunction, and if successful will expect the B.C. case to be stayed.

[6] Counsel for the Plaintiff advises that a second action has been commenced in British Columbia raising the same claims as the first B.C. action, but with a different plaintiff. That action has been issued in the British Columbia Supreme Court, but has not yet been served on the Defendants due to the intervening COVID-19 lockdown. Plaintiff’s counsel’s plan is to eventually consolidate the two B.C. actions under the name of the new plaintiff, thereby eliminating the basis for an anti-suit injunction.

[7] Of course, I have no control over what the parties or the courts do in another province. It is my role as case management judge, however, to ensure that the litigation before in this court is not unduly. If counsel for Hershey wants its anti-suit motion heard and counsel for the Plaintiff wants its discontinuance motion heard, I see no reason not to schedule them both at this time. And since they will both raise the issue of where this proposed class action should be litigated, it seems logical to schedule them to be heard on the same day.

[8] The Plaintiff has not yet had a chance to produce a Responding Record to the anti-suit injunction motion and Hershey has not yet had a chance to produce a Responding Record for the motion to discontinue. There may be cross-examinations that need to take place after those records are exchanged. Both sets of counsel propose that sufficient time be built into the schedule to permit all of this to take place.

[9] Both motions will proceed on September 11, 2020. We will set aside a full day for the hearing. The anti-suit injunction will be heard first, followed by the motion for permission to discontinue. In the event that I reserve on the anti-suit motion I may or may not have to adjourn the subsequent discontinuance motion, but I will leave that to be addressed on the September 11, 2020 motion day.

Date: April 20, 2020 Morgan J.