The answer is yes. On April 6, 2017, in a novel case, the British Columbia Supreme Court held that a conventional or individual action can be converted into a class proceeding by amending the claim to invoke the provisions of the British Columbia Class Proceedings Act. Such orders are discretionary. While the issue is novel in B.C., amendments converting an action to a class proceeding had been permitted in Ontario and Saskatchewan. The case is significant for defendants in litigation who may think they are not at risk for being the target of a class proceeding if an individual claim (or claims) on the same issue has already been commenced.
The dispute between the parties arose from the termination of a casino operation services agreement. Specifically, the plaintiff alleged that the defendant continued to withhold revenues owing to the plaintiff.
The court held that conversion of an individual action to a proposed class proceeding by way of an amendment to the Notice of Civil Claim is permitted under both the British Columbia Class Proceedings Act and the British Columbia Rules of Court, and is consistent with the overarching objectives and the inherent flexibility of class proceedings. In exercising its discretion to permit such amendments, the court held the following factors are relevant:
- history of the proceedings;
- the length and reason for the delay in seeking to convert the action;
- the expiry of any limitation periods;
- the presence or absence of other prejudice to either party;
- the likelihood or otherwise of a proper class eventually being defined;
- the conduct of the parties; and
- the objectives of a class proceeding: judicial economy, access to justice and behavior modification.
Second, the court held that the conversion would not advance the objectives of the Class Proceedings Act. The proposed class involved the plaintiff, its related parties, and three other service providers, each of whom the court found were sophisticated parties. The court held there was no issue with access to justice. Since none of the other entities had commenced actions against the defendant or demanded repayment of the fees, the court held that the proposed class proceeding would not advance the goal of judicial economy. Since it was a contractual dispute, there was no issue of behavior modification at stake.
Ultimately, the court determined that it was not an appropriate case to grant the conversion for two reasons. First, the court held that the applicant delayed in bringing forward its application, without adequate explanation. The plaintiff filed its claim in March 2015, took various other steps in the litigation, then filed certification and claim amendment materials in September 2016.