By James Langton

(February 15 – 17:50 ET) – An Ontario court has stayed the sweeping lawsuit by Investors Group against rival Berkshire Group on accusations of rep raiding.

The suit accused Berkshire of systematically raiding Investors for sales reps over the past few years. Investors has six other actions outstanding against Berkshire, two others in Ontario, along with cases in Quebec, British Columbia, Nova Scotia and Newfoundland. The cases involve similar allegations, but deal with specific reps.

In the decision the judge notes that there is no specific test for deciding these cases, but a range of factors must be considered, and even then because of the “unusual circumstances” of this case the judge finds the law on the matter of little help.

One unusual point is that Berkshire is in favour of allowing the other suits to proceed, while staying this broader suit. And, according to the judge, “Contrary to the position that one normally expects from a plaintiff who is attacking on all fronts, Investors Group wants this action to proceed and to be tried in advance of the other actions.”

He notes that Investors has said it is willing to stay the other cases until this one is decided. Although the judge doesn’t buy this position. “It seems to me that one must approach with some scepticism the position of Investors Group on this motion. Investors Group did not take steps to discontinue or stay the other actions, to address the counterclaims that are advanced in some of those actions, or to pay the costs associated with the actions.”

Ultimately, the judge concludes that, “To permit this action to proceed will involve the repetition of documentary production, examinations for discovery, and cross-examinations that have occurred in other proceedings. It will reward delay. It will encourage a further multiplicity of proceedings. It will require Berkshire Group to defend itself for a seventh time on common issues. Having chosen to litigate as it has, I can think of no persuasive reason that the Ontario courts should lend assistance to the prosecution of this action while the other actions are pending.”