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Class actions in British Columbia: Go west, young plaintiffs, go west

Author(s): Christopher Naudie, Emily MacKinnon, Sergio Ortega

Dec 13, 2021

British Columbia has long been a plaintiff-friendly forum for class proceedings in Canada. In contrast to other provincial jurisdictions, plaintiffs in B.C. enjoy the benefit of favourable costs rules that limit their potential exposure to adverse cost rulings at the certification stage of a case. B.C.’s popularity with potential plaintiffs as a jurisdiction for the commencement of class actions was further bolstered this year by the adoption of important amendments to Ontario’s Class Proceedings Act, 1992 in September 2020. Under these amendments, proposed representative plaintiffs now face a more onerous burden in seeking class certification in Ontario. This change has led to a migration of new national class actions away from Ontario to B.C. and other provinces. In addition, since 2018, B.C. has permitted the certification of national classes that include extra-provincial residents on an opt-out basis.

In 2021, two key decisions were issued that affect B.C. class actions practice and that have not been uniformly plaintiff-friendly. On the one hand, the Supreme Court of Canada refused leave to appeal from a decision of the B.C. Court of Appeal that affirmed a long jurisdictional reach of B.C. courts in relation to price-fixing conspiracy claims and foreign defendants in a class proceeding. On the other hand, the B.C. Court of Appeal held that certification should not be presumed to be the first step in a proposed class action; consequently, in the right case, defendants should be able to bring preliminary substantive motions, such as jurisdictional challenges or motions to strike, before the motion for certification is even heard...