On March 1, 2011, the provisions of the Class Proceedings Amendment Act, 2010 came into force resulting in changes to Alberta's class proceedings legislation. The most significant changes include amendments which address multi-jurisdictional class actions, opting in and opting out of class proceedings, and the process for settlement, discontinuance, abandonment and dismissal of a class action.
The new multi-jurisdictional provisions
Prior to the amendments, Alberta's legislation did not specifically address multi-jurisdictional class proceedings; it merely provided non-Alberta residents the opportunity to opt in to class proceedings. However, the new provisions dealing with multi-jurisdictional class proceedings are detailed and extensive. They include:
- the addition of a definition of "multi-jurisdictional class proceeding" in s. 1(h.2);
- an alteration to the definition of "representative plaintiff" in s. 1(l) to include, in the case of a multi-jurisdictional class proceeding or a proposed multi-jurisdictional class proceeding commenced in a jurisdiction other than Alberta, a person who is appointed under an Act in another jurisdiction as the representative plaintiff for a class or subclass in respect of that proceeding;
- an addition to s. 2(2) requiring that the person who commences a class proceeding under the Alberta legislation must give notice of the application for certification to the representative plaintiff in any multi-jurisdictional class proceeding or proposed multijurisdictional class proceeding commenced elsewhere in Canada that involves the same or similar subject matter;
- a provision allowing the representative plaintiff in a multi-jurisdictional or proposed multi-jurisdictional class proceeding to make submissions at the application for certification (s. 2.1);
- changes to s. 5 on certification to include the following after s. 5(5):
- (6) If a multi-jurisdictional class proceeding or a proposed multi-jurisdictional class proceeding has been commenced elsewhere in Canada that involves subject matter that is the same as or similar to that of a proceeding being considered for certification under this section, the Court must determine whether it would be preferable for some or all of the claims or common issues raised by the prospective class members to be resolved in the proceeding commenced elsewhere.
- (7) When making a determination under subsection (6),
the Court must be guided by the following
- (a) ensuring that the interests of all parties in each of the relevant jurisdictions are given due consideration;
- (b) ensuring that the ends of justice are served;
- (c) where possible, avoiding irreconcilable judgments;
- (d) promoting judicial economy.
- (8) When making a determination under subsection (6),
the Court may consider any matter that the Court considers
relevant but must consider at least the following:
- (a) The alleged basis of liability, including the applicable laws;
- (b) the stage each of the proceedings has reached;
- (c) the plan for the proposed multi-jurisdictional class proceeding, including the viability of the plan and the capacity and resources for advancing the proceeding on behalf of the prospective class members;
- (d) the location of the class members and representative plaintiffs in the various proceedings, including the ability of the representative plaintiffs to participate in the proceedings and to represent the interests of the class members;
- (e) the location of evidence and witnesses;
- (f) the advantages and disadvantages of litigation being conducted in more than one jurisdiction.
- the addition of provisions dealing with the certification of a
multi-jurisdictional class proceeding including:
- s. 9.1(1) The court may, on application, make an order
certifying a proceeding as a multi-jurisdictional class proceeding
- (a) the criteria set out in s. 5(1)(1) have been satisfied, and
- (b) having regard to section 5(7) and (8) the Court determines under section 5(6) that Alberta is the appropriate venue for the determination of the proceeding.
- (2) If the Court determines that the proceeding should proceed as a multi-jurisdictional class proceeding in another jurisdiction, the Court shall refuse to certify the proceeding as a multi-jurisdictional class proceeding.
- (3) The Court may refuse to certify a portion of a proposed class if that portion contains members who may be included within class proceeding, or a proceeding that is the subject of a certification application, in another jurisdiction.
- s. 9.1(1) The court may, on application, make an order certifying a proceeding as a multi-jurisdictional class proceeding if
To make way for the above noted changes, the following sections of Act were repealed:
s. 7(3) If a class is made up of persons who are residents of Alberta and persons who are not residents of Alberta, that class is to be divided into resident and non-resident sub-classes.
s. 9(1)(g) Where the Court makes a certification order, the Court may include any provision that it considers appropriate, but in its order the Court must at least state the manner in which, and the time within which, a person who is not a resident of Alberta may opt into the proceeding.
The new opt-out provisions
The new s.17 provisions on opting out have repealed and replaced the former s. 17 provisions that allowed for opting in or opting out depending on whether the individual was a resident or non-resident of Alberta. The amendments specify that regardless of place of residence, a class or subclass member belongs to the class unless that member opts out. What this means is that it is no longer residence which determines class membership – the issues and causes of action will now play a significant role in determining class membership.
An additional section was added dealing with the transition from the residence focussed opt-in/opt-out provision to the new opt-out provision – s. 17.1 – which stipulates that the former s. 17 applies to non-residents in respect of every proceeding that was certified before the Class Proceedings Amendment Act, 2010 came into force. Notably, however s. 17.1 also stipulates that where a proceeding was certified under the former Act any party to the proceeding may apply to the Court for an order amending the certification order to comply with the new s.17.
The new settlement provisions
The new s.35 provisions on settlement, discontinuance, abandonment and dismissal have also repealed and replaced the former s.35 provisions. The most notable change is that whereas the settlement provisions of the former Act only applied to actions which had been certified, the provisions in the amended Act include proceedings which are the subject of an application for certification. What this means is that class proceedings that have been certified as well as those actions where certification has been applied for, require Court approval for settlement.
While not discussed above, another interesting change includes the addition of a definition for "class" to mean two or more persons with common issues related to a cause of action or a potential cause of action. This could have a significant impact on the bar for certification if a plaintiff needs only show that there is the potential to make out a cause of action.
To date, there have been no reported decisions which discuss the new provisions. Furthermore, how the amended Act would work with the judicial protocol for the management of multijurisdictional class actions proposed by the CBA's Task Force on Class Actions, should it be implemented, remains uncertain. What is certain is that with the ever-increasing number of class actions being filed with the Courts, defendants may well be faced with multiple actions in several forums and will have to develop creative strategies to deal with parallel proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.