BC Class Actions Trends

McCarthy Tétrault Advance™
Building Capabilities for Growth

HOT TOPICS IN CLASS ACTIONS

Defending Class Actions in Canada,
3rd Edition

February 9, 2012

McCarthy Tétrault LLP / mccarthy.ca / February 9, 2012 / Doc ID #11150233

2

SESSION 1

Class Actions –The Big Picture
British Columbia In Flux

Andrew Wilkinson, Q.C.


15 Years of Class Actions in BC 3

¬ BC was early in Canada (1996)
¬ Class Proceedings Act provides for rep plaintiff to
apply to “certify” entire class
¬ Sometimes defendants like to be certified to
ensure capture of all claims
¬ QC process (“authorization”) very different, with
no appeal for defendants


Certification Criteria 4

¬ Cause of Action (including novel claims)
¬ Identifiable class
¬ Common issues
¬ Preferable procedure
¬ Rep plaintiff adequately represents class
¬ Workable litigation plan

US criteria are more restrictive than Canadian


Role of BC in Canadian Class Actions 5

¬ “National” classes still controversial in Canada
¬ BC was a local market until recently - “opt out”
made ON and QC more attractive to plaintiffs
¬ BC now seen as more plaintiff friendly
¬ ? lower thresholds for certification
¬ Organized plaintiff bar means co-ordinated
actions across Canada
¬ US actions often lead by example


Proposed Amendments to 6

B.C. Class Proceedings Act
¬ Only BC, NB and NF are “opt in”
¬ SK and AB changed to “opt out”
¬ CBA proposes that BC change to “opt out”
¬ With no costs against plaintiffs, would make BC
attractive to national class plaintiffs


7

SESSION 2

Winning the war before it begins:
Pre-certification strategies

Miranda Lam


8


You’ve been sued … now what? 9

¬ Legal considerations:
¬ Choice of defence counsel
¬ Defeating the claim on a preliminary basis
¬ Jurisdiction
¬ Other dispute resolution mechanisms
¬ Nature of the claim
¬ Opposing certification
¬ Defence on the merits
¬ Settlement


Preliminary Steps: Challenge Jurisdiction 10

¬ In British Columbia, only residents are
automatically included in the class unless they
opt out
¬ Issues:
¬ Conflict of laws
¬ Court Jurisdiction and Transfer of Proceedings Act
¬ “real and substantial connection” codified
¬ Constitutional: can provincial legislation have
extra-provincial effect?
¬ Practical and strategic implications


Preliminary Steps: Challenge the 11

Dispute Resolution Mechanism
¬ Mandatory Arbitration
Where the subject matter of the proposed class
action is an agreement or relates to one, and the
agreement contains an arbitration clause requiring
that any disputes under it be resolved by
arbitration, a defendant may be entitled to apply to
have any court proceedings stayed.
N.B. Breaches of consumer protection legislation
are not subject to arbitration.


Preliminary Steps: Challenge the 12

Nature of the Claim
¬ Cause of action
¬ Motion for particulars
¬ Security for costs
¬ Summary judgment and summary trial


Oppose Certification 13

¬ OPPOSE: ¬ CONSENT:
¬ Failure to meet criteria ¬ Strong case on the merits
¬ Incomplete pleadings ¬ Conditional consent as
¬ Substantive defence on precursor to settlement
the merits ¬ Significant individual
¬ Strategic positioning claims that would be
costly to defend
separately
¬ Leverage
¬ Appetite and resources to
litigate


Avoiding Class Actions 14

¬ Robust Risk Management
¬ Review processes and policies associated with
handling customer complaints and identification of
issues
¬ Review internal policies to ensure currency and
responsiveness (HR, safety, environmental,
confidentiality)
¬ Consistent communication – internal and
externally
¬ Agreements
¬ Mandatory arbitration clauses?

15

SESSION 3

Trends in B.C. Class Actions:
Our World Is Changing

Jill Yates


Types of Claims are Changing 16

¬ BPCPA – BC’s consumer protection legislation
¬ Various benefits for plaintiffs, including:
¬ aggressive remedies in some cases
¬ insulation from arbitration in some cases
¬ Waiver of Tort
¬ either cause of action or remedy
¬ various benefits for plaintiffs
¬ Plaintiffs looking for opportunities to plead both of
these


Certification Standards are Changing 17

¬ Getting tougher to get certified in US
¬ Easier to get certified in Ontario
¬ Easier to get certified in B.C.
¬ Many courts are not strict about the requirements
of the CPA
¬ e.g. Wakelam v. Johnson & Johnson et al.
¬ e.g. Steele v. Toyota Canada Inc.
¬ Courts are taking a “certify now, worry later”
approach


Scope is Changing 18

¬ National/Cross-border classes are becoming
more common, including in B.C.
¬ The majority of our class actions are part of/
extensions of/ copies of claims in other
jurisdictions
¬ It has been proposed that B.C.’s legislation be
amended to allow for national classes
¬ Working toward a Judicial Cooperation Protocol in
Canada


How We Defend is Changing 19

¬ Courts have stated that it may often be
appropriate for defendants to file a defence
before certification – and some judges are
requiring it
¬ Some courts are allowing pre-certification
motions (e.g. pleadings, summary trials)
¬ Certification is no longer the end of the litigation
process in a class action – cases are increasingly
continuing beyond certification and some are
going to trial


20

SESSION 4

Class Action Quirks:
Limitations Periods in “Trust” Claims
Aggregate Damages
AND Contribution after Settlement
Warren Milman


Limitation Periods 21

¬ Most Provinces: 2 years, subject to
“discoverability”
¬ BC – Special case for claims seeking
disgorgement of “trust funds” (e.g., waiver of tort)
¬ Law reform: relief is in sight?


Aggregate Damages 22

¬ Traditional rule – can’t use CPA to create new
substantive liability
¬ New rule: CPA allows class-wide damages to be
aggregated so that class members need not
show loss or injury
¬ Punishment vs. compensation
¬ Cy-prés awards


Contribution 23

- is settlement really the end?

¬ Rights of contribution for joint and several liability
¬ Bar orders and covenants not to sue
¬ Conspiracy claims?


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McCarthy Tétrault LLP / mccarthy.ca / February 9, 2012 / Doc ID
#11150233

BC Class Actions Trends

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