Important changes have been made to Saskatchewan's Class Actions Act (CAA) affecting all companies and other organizations that are in any way involved in the distribution of goods or services to the public.
Most companies now appreciate that they are exposed to class actions in connection with many aspects of their business. Saskatchewan is a favoured place for plaintiffs to start class actions, even against companies that do only a small amount of their total business in that province.
Until a recent amendment to Saskatchewan's CAA, applicants for certification in Saskatchewan have been immune from costs in most circumstances. The exposure to costs can make, in the words of the Supreme Court of Canada, class actions litigation the "sport of kings in the sense that only kings or equivalent can afford it" (Kerr v Danier Leather Inc., 2007 SCC 44 at para 63) and can be a major deterrent against class actions in some situations. Because of the near virtual immunity against adverse costs awards, as well as other features of Saskatchewan law, many plaintiffs chose to commence class actions in this province.
Amendments to Saskatchewan's CAA, expected to be proclaimed into law this week, give Saskatchewan courts the right to make any order of costs the court considers appropriate with respect to any application, action or appeal pursuant to the CAA. This change generally aligns Saskatchewan law with that in Alberta, Ontario, Quebec, New Brunswick, Nova Scotia and Prince Edward Island. Saskatchewan's new costs provisions will apply to any proceedings commenced, and costs incurred before, on or after this new section came into force. The change in law has the potential to put some check on plaintiffs' bringing claims of dubious merit.
Many reasons remain why Saskatchewan is likely to continue as a favoured jurisdiction for plaintiffs to commence class actions. These reasons include that Saskatchewan costs awards are generally much more modest than other provinces. Local procedures and a light docket make access to the courts easier in Saskatchewan than in some other jurisdictions. Perhaps most importantly, Saskatchewan's ability to certify so-called "national" classes that bind non-residents on an "opt-out" basis, make the province an attractive forum to pursue pan-Canadian actions.
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