Canada: New B.C. Legislation Proposes Multi-Jurisdictional Opt-Out Class Actions

INTRODUCTION

Recently, the Government of British Columbia introduced Bill 21, 2018 Class Proceedings Amendment Act, to amend the Class Proceedings Act, R.S.B.C. 1996 (amended CPA). The bill received third reading on April 26, 2018. The amended CPA will permit national opt-out classes to be certified by the B.C. courts, which is a significant change from the current requirement that non-resident class members opt-in to a class action certified in B.C. The amended CPA would also include new provisions directed at some of the challenges faced by parties and courts in multi-jurisdictional class action proceedings. The proposed amendments are based on the Uniform Law Conference of Canada's Uniform Class Proceedings Amendment Act (ULCC Uniform Act), which Alberta and Saskatchewan have both previously adopted.

PROPOSED KEY CHANGES

Opt-Out Mechanism for Out-of-Province Class Members

The most notable feature of the amended CPA is that it will permit the certification of a national class on an opt-out basis. Following certification of a proceeding, a national class may still be divided into resident and non-resident subclasses, and separate representative plaintiffs may be appointed for each subclass if necessary, but non-residents will not need to opt-in to the certified class. Currently, B.C. is one of the only provinces in Canada that requires a separate non-resident sub-class to be certified, and for non-residents to take a positive step to opt-in to the class action (it is also one of the only "no cost" regimes for class actions in the country). The Government of British Columbia has stated that the purpose of this proposed amendment is to "ensure that all appropriate parties in a multi-jurisdictional class action are included in the proceedings, regardless of where they live."

Denial of Certification when B.C. is Not the Preferable Forum

Multi-jurisdictional class actions have become more common in Canada and raise unique challenges for parties and courts, particularly regarding jurisdiction, coordination of proceedings, judicial economy, settlement and consistency of verdicts. Under the amended CPA, the certifying court in B.C. must decide if a class action involving the same or similar subject matter in another jurisdiction (related class proceeding) is a more suitable forum for the determination of any claims or common issues raised in the B.C. class proceeding. In making this decision, the court must take into account certain factors, including the risk of irreconcilable judgments and judicial economy.

If the certifying court determines that B.C. is not the appropriate forum for the class proceeding, the amended CPA will allow the court to refuse certification. The court may also refuse to certify only that part of the proposed class containing members who might be in the class for a related class proceeding in another jurisdiction. In effect, this new provision allows a B.C. court to certify some or all common issues, while deciding that the resolution of other common issues or the assessment of individual issues must be determined by a court in another province.

Standing of Other Plaintiffs to Appear at Certification Hearings

The amended CPA would provide that representative plaintiffs for related class proceedings may make submissions at a B.C. certification hearing. The proposed amendment to the CPA appears to grant a right of standing to all representative plaintiffs in related class proceedings, without the need for a prior application to the certifying court and without any limitation on the subject of those submissions. The comment relating to this proposed amendment in the ULCC Uniform Act states that a plaintiff would have to "apply to the Court to make submissions to the court considering certification of the other class proceeding." Accordingly, it is unclear whether an application will be required, and if so, what factors the B.C. courts should consider on such an application.

Application to Previously Certified Class Proceedings

The amended CPA provides that the existing statutory provisions regarding opting out and opting in to resident and non-resident subclasses will continue to apply to class proceedings that are certified before the amended CPA comes into force. However, on application by a party, the court can amend an existing certification order to include non-resident class members who would have been members of the class but for not being resident in British Columbia, and order that notice of the amended certification order be given to those non-resident class members.

CONCLUSION

The Government of British Columbia has stated that it hopes to "clarify and improve the processes for class proceedings involving both residents and non-residents of British Columbia" with these proposed amendments to the CPA. However, the real impact of permitting national opt-out class actions to be certified in B.C. may be that even more class actions are filed in British Columbia. We may also see previously certified B.C. class actions converted into national class actions. It remains to be seen whether the proposed amendments will resolve any of the challenges presented by multi-jurisdictional class actions, or whether they will further complicate matters by creating new issues and uncertainties in class action practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.