On April 23, 2018, the Attorney General of British Columbia announced that the government was tabling major amendments to the Class Proceedings Act, R.S.B.C. 1996, c. 50. The proposed amendments will 1) switch BC from an “opt in” to an “opt out” jurisdiction and 2) establish a framework for the certification of multi-jurisdictional class proceedings. If enacted, the amendments will have significant consequences for both current and future class proceedings in the province.
All class proceedings statutes provide a mechanism by which potential class members can exclude themselves from a class. Most jurisdictions in Canada have opt-out regimes, whereby both resident and non-resident class members must opt out of the action if they do not want to be bound by the proceedings. Opt-out regimes are generally considered to be more plaintiff-friendly, in that they involve larger classes and thus larger potential claims against defendants.
BC currently has a hybrid regime, whereby residents must opt out, but non-residents must opt in to join class proceedings. If non-residents fail to opt in, they are excluded from the class. Under the proposed amendments, BC will change to an opt-out regime for residents and non-residents. Both groups will be automatically considered members of the class unless they voluntarily opt out.
Procedural framework for multi-jurisdictional class proceedings
The proposed amendments also provide guidance for the certification of class proceedings involving residents and non-residents (“multi-jurisdictional class proceedings”). The amendments address three specific procedural issues: notice, the relevant considerations for certification, and possible orders.
First, if there are existing or proposed multi-jurisdictional class proceedings elsewhere in Canada involving the same or similar subject matter, the proposed representative plaintiff in BC must provide notice of the certification application to the representative plaintiffs involved in those proceedings. Representative plaintiffs who receive notice are then able to make submissions at the certification hearing in BC. As discussed in a previous post, this likely includes the ability to adduce evidence.
Second, in certifying a multi-jurisdictional class proceeding, the court must determine whether it would be preferable for some or all of the claims or common issues to be resolved in existing proceedings elsewhere in Canada. The amendments provide guidance on the objectives and relevant factors for the court to consider.
Third, the court has the discretion to make any order it considers appropriate in a certification application for a multi-jurisdictional proceeding, including certifying only a portion of a proposed class.
The proposed amendments also include transition provisions for existing class proceedings.
Under the amendments, if a proceeding was certified prior to the coming into force of the amendments, a party may apply to amend the certification order to include non-residents as members of the class.
If a proceeding was commenced before the coming into force of the amendments but certified after, non-residents who otherwise meet the class definition are included as members of the class.
Together with BC’s plaintiff-friendly class action costs regime, the opt-out amendment is likely to make BC an even more appealing jurisdiction for class action plaintiffs. The proposed amendments will harmonize BC’s class action regime with the majority of jurisdictions in Canada and will significantly increase the size of classes in BC by allowing national classes. Current proceedings that have already been certified may also be affected, as parties can apply to amend certification orders to include non-residents. The amendments thus have the potential to expand the scope and national significance of class proceedings in the province.
The proposed amendments will also provide some clarity on the procedure for multi-jurisdictional certification applications. In addition to requiring notice and permitting non-resident representative plaintiffs to make submissions, the amendments provide a list of objectives and factors for the court to weigh when considering such an application. By expressly requiring the court to consider the existence of ongoing class proceedings elsewhere and to hear from plaintiffs from those proceedings, the amendments will hopefully encourage courts in BC to defer to class proceedings in other provinces where appropriate.