On April 24, 2018, the BC government introduced Bill 21 to amend the Class Proceeding Act (“CPA”). The amendments will change BC from an “opt in” jurisdiction for non-residents to an “opt out” jurisdiction. There were a number of consequential amendments to the CPA that address the issues that will now arise from certification of “multi-jurisdictional” class proceedings.
BC has traditionally not mandated that non-residents are included in a certified class unless those non-residents expressly “opt in” in the proceeding. This has made BC a less friendly jurisdiction for class proceedings than, for example, Ontario, Manitoba, Saskatchewan, Nova Scotia and Quebec. The amendments will change this and bring BC into line with those jurisdictions.
BC judges will now be required to certify class proceedings for non-residents unless those non-residents expressly “opt out.” Normally, requiring non-residents to “opt in” has reduced the class size and the exposure for defendants as most non-resident class members have historically not responded to an “opt in” notice. If the amendments are passed into law, the converse will now be true – certified classes will now be larger and the defendants exposure will increase as the experience in other jurisdictions has shown that non-resident class members do not respond to an “opt out” notice and will therefore be included in the certified class.
The amendments also provide for certain procedures to be followed where a judge is facing an application to certify where their class would include those who are already part of a class proceeding or a proposed class proceeding in another jurisdiction. These procedures provide for notice to the representative plaintiff or proposed representative plaintiff in those other proceedings and also allow a judge to refuse to certify the BC proceeding in favour of the class proceeding in the other jurisdiction.
This blog will update you on the progress of these amendments as they will significantly alter class proceedings practice in BC.
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