Although historically the only real battle ground in B.C. class actions was certification, the new reality is more complicated.
- There continue to be some cases in which pre-certification issues are a battle ground, including, for example, where defendants seek a stay based on jurisdiction or apply to have pleadings struck. The state of the law is now that certification is to be the first procedural hearing except where a motion is time-sensitive, would benefit the parties, furthers the objective of judicial efficiency or has the potential to dispose of the litigation (Tucci v. Peoples Trust, 2015 BCSC 987). Even on this test, however, some pre-certification motions are heard in 2015. One example is Harrison v. Afexa Life Sciences Inc., 2015 BCSC 638, in which a plaintiff was ordered to provide particulars for several cause of action and the plaintiff’s pleading in relation to the Food and Drugs Act was struck.
- The standard to certify a B.C. case as a class action remains low, but defendants successfully opposed certification either at the Supreme Court or on Appeal in numerous cases in 2015 – indeed, there were defence wins on contested certification applications than plaintiff wins. The refusals to certify included where:
- a municipality’s warrantless searches of properties required individual assessments (Monaco v. City of Coquitlam, 2015 BCSC 2421);
- allegations that vehicular damage was concealed in order to improperly charge renters for repairs involved fact-specific assessments not preferable addressed through a class proceeding (Vaugeois v. Budget, 2015 BCSC 802);
- the patent regulatory is a complete code foreclosing civil actions by consumers based on the Patent Act (Low v. Pfizer Canada Inc., 2015 BCCA 506); and
- evidence of a methodology to address risk of harm to all class members was adduced (Charlton v. Abbott Laboratories Ltd., 2015 BCCA 26).
- Finally, class action trials are proceeding in B.C., primarily in the form of summary trials. The literature reports that, as of 2014, there had been 8 class action common issues trial decisions in B.C., three going to the plaintiff and five to the defendant (Foreman & Meisenheimer, “The Evolution of the Class Action Trial in Ontario” 4:2 (2014) Western J of Legal Studies, Art. 3 at 5). 2015 brought three more decisions, at trial or on appeal from trial, in all of which plaintiffs were at least partially successful. It is expected that the number of trial decisions will continue to increase in the short and long term.
The development of additional battlegrounds is positive, offering litigants additional strategic options and contributing to more robust case law.