British Columbia Government Proposes Changes to the Class Proceedings Act
May 3, 2018
BY Valerie Le Blanc
On April 23rd, the provincial government introduced Bill 21, Class Proceedings Amendment Act, 2018. The purpose of Bill 21 is twofold, namely to amend BC’s Class Proceedings Act to facilitate certification and management of multi-jurisdictional class proceedings, and to enhance participation in class proceedings for both residents and non-residents of British Columbia. The amendments are modeled after provisions of the Uniform Law Conference of Canada’s (ULCC) Uniform Class Proceedings Act (Amendment) 2006.
If the proposed changes are adopted, British Columbia will be the third province in Canada to follow the ULCC’s model. Both Saskatchewan’s The Class Actions Act and Alberta’s Class Proceedings Act contain provisions on multi-jurisdictional class proceedings modeled after the ULCC framework.
Proposed Changes under Bill 21 to the Class Proceedings Act
- Expand the definition of “class proceeding” under Section 1 to include multi-jurisdictional class proceedings;
- Add a definition for “multi-jurisdictional class proceeding” to Section 1, defined as “a proceeding that is brought on behalf of a class of persons that includes persons who do not reside in British Columbia”;
- Amend the Section 2 certification processes to require a member who applies to certify a class proceeding to give notice to the representative plaintiff for any existing or proposed multi-jurisdictional class proceeding commenced elsewhere in Canada that involves the same or similar subject matter;
- Enable a plaintiff from another class proceeding, who receives notice of an application for certification, to make submissions at the certification hearing;
- For multi-jurisdictional class proceedings or a proposed multi-jurisdictional class proceeding commenced elsewhere in Canada, and involving the same or similar subject matter to that of the proceeding being considered for certification in BC, the court must determine whether it would be preferable for some or all of the claims of the proposed class members, or some or all of the common issues raised by those claims, to be resolved in the proceeding commenced elsewhere. In its determination, the court must be guided by the following:
- ensure that the interests of all parties in each of the relevant jurisdictions are given due consideration;
- ensure that the ends of justice are served;
- avoid irreconcilable judgments, if possible;
- promote judicial economy, and
- consider relevant factors, including the following:
- the alleged basis of liability, including the applicable laws;
- the stage that each of the proceedings has reached;
- the plan for the proposed multi-jurisdictional class proceeding, including the viability of the plan and the capacity and resources for advancing the proceeding on behalf of the proposed class;
- the location of class members and representative plaintiffs in each of the proceedings, including the ability of representative plaintiffs to participate in the proceedings and to represent the interests of class members;
- the location of evidence and witnesses.
Other proposed changes include granting authority for orders of the court relating to these proceedings, and other consequential amendments. For review of the entire proposed text of Bill 21, visit here.
In its news release, the provincial government states “[t]he changes will increase access to justice and improve judicial efficiency by reducing the necessity for parallel proceedings to take place in other provinces or territories.” BC’s current legislative framework requires non-residents to initiate their own registration as a member of a class proceeding. The proposed changes, if adopted, “will ensure that non-residents are automatically considered members of the lawsuit unless they voluntarily opt out.”
Class Proceedings and Financing Litigation
Recall from discussion on class proceedings from BCLI’s Study Paper on Financing Litigation that the benefits of joining claims with similar facts and legal issues has had long-standing support from the Supreme Court of Canada (see e.g. Western Canada Shopping Centres Inc v Dutton, 2001 SCC 46,  2 SCR 534). Currently, non-residents of BC are required under section 16(2) of the Class Proceedings Act to take steps to opt-in to a BC class proceeding. By expanding the legislation to both join multi-jurisdictional class proceedings and grant non-residents automatic membership in the class, the proposed amendments could potentially resolve some of the financial and administrative challenges that may prohibit fulsome participation by those facing similar legal issues elsewhere in Canada.