Class Actions Made Easy: Bill 21 Amendments Burnish British Columbia’s “Friendly Forum” Reputation

June 13, 2018
  • British Columbia has long been known as one of Canada’s friendlier jurisdictions for class proceedings.
  • Until now, this reputation has largely been due to the province’s “no cost” regime, under which an unsuccessful representative plaintiff on a certification motion does not have to pay the defendant’s legal costs (with a few exceptions).
  • Recent amendments to the Class Proceedings Act, known as “Bill 21”, may make British Columbia an even more attractive forum for the initiation of class proceedings by making it easier to include residents of other Canadian jurisdictions in the plaintiff class.

What the Bill 21 Amendments Do

On May 17, 2018, Bill 21 (the Class Proceedings Amendment Act, 2018 ) received Royal Assent, having been passed by the B.C. Legislative Assembly in April. Once its provisions are proclaimed in force, Bill 21 will amend the existing CPA to:

  • Expressly provide for multi-jurisdictional class proceedings;
  • Automatically include non-residents of British Columbia as members of a lawsuit unless they voluntarily opt-out (this will simplify the creation of national classes, versus the existing “opt-in” regime that requires active consent from each potential non-resident class member);
  • Require that representative plaintiffs in class proceedings in Canada be notified about similar class proceedings when they arise in British Columbia;
  • Allow non-resident plaintiffs to make submissions at certification hearings;
  • Set out objectives and relevant factors for the court to consider as part of the multi-jurisdictional class proceeding certification process; and
  • Include transitional provisions to clarify how the new opt-out approach for non-residents will apply with respect to class proceedings that have been commenced prior to the changes coming into effect.

The amendments are based on the Uniform Law Conference of Canada’s Uniform Class Proceedings Act and, by adding the opt-out provision, will bring British Columbia’s regime into line with a majority of other provinces, including Alberta, Saskatchewan and Ontario.

Purpose of the Amendments

The Government of British Columbia has stated that the purpose of the amendments is to “increase access to justice and improve judicial efficiency” by ensuring that “all appropriate parties in a multi-jurisdictional class action are included in the proceedings, regardless of where they live.”

Looking Ahead: What to Expect

Empirical evidence suggests that opt-out classes are much larger than opt-in classes making the opt-out regime more desirable to class counsel. Together with the no-costs regime in B.C., this amendment raises the stakes for defendants facing proposed class proceedings in B.C. and may make British Columbia an even more attractive forum for class proceedings moving forward.

Please note that, while the amendments have been passed, they have not yet been proclaimed in force.

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