The recent British Columbia case of Tonn v. Sears Canada Inc., 2016 BCSC 1081, is an example of a trend in Canadian cases where courts are conditionally certifying class proceedings despite a plaintiff’s failure to define the class as required or dismissing the application with substantial guidance for re-application.
In Tonn, a group of former employees sought to certify a class action against Sears for allegedly terminating their employment without proper severance. In March 2013, Sears sold a division of its business to another company. The majority of the employees in this division obtained employment with the purchasing company and were not paid severance by Sears. Within a year of the sale, the purchasing company went out of business, which resulted in the termination of employees’ jobs.
The court dismissed the plaintiff’s certification application finding that two of the five certification requirements were not met. The court held that the identifiable class requirement was not met because the class definition was overly broad and improperly included substantive issues to be determined at trial. The court also held that the claims, as defined by the plaintiff, did not raise common issues among the class members.
In dismissing the certification application, the court provided substantial guidance on suitable amendments and expressly invited the plaintiff to re-apply for certification. The guidance extended beyond minor adjustments. The court provided suggested revisions to the class definition and common issues and suggested that these amendments would result in certification upon re-application.
While the British Columbia Class Proceedings Act gives courts the power to make amendments, it is arguable how far this power extends: does it allow courts to make ‘wholesale changes’ beyond minor adjustments?
The Tonn case demonstrates that the failure of a plaintiff to adequately identify and define the proposed class will not always be fatal to a certification application. Courts are using their powers to look beyond the plaintiff’s materials to the factual circumstances of the case and determine whether the class is capable of being defined as required under the CPA. This trend suggests that there may be limited scope for defeating class certification on the issue of identifiable class alone if the facts are such that there is a potential for the class to be redefined.