The recent British Columbia case of Tonn v. Sears Canada
Inc., 2016 BCSC 1081, is an example of a trend in Canadian
cases where courts are conditionally certifying class proceedings
despite a plaintiff's failure to define the class as required
or dismissing the application with substantial guidance for
In Tonn, a group of former employees sought to certify
a class action against Sears for allegedly terminating their
employment without proper severance.2 In March 2013,
Sears sold a division of its business to another company. The
majority of the employees in this division obtained employment with
the purchasing company and were not paid severance by Sears. Within
a year of the sale, the purchasing company went out of business,
which resulted in the termination of employees' jobs.
The court dismissed the plaintiff's certification
application finding that two of the five certification requirements
were not met. The court held that the identifiable class
requirement was not met because the class definition was overly
broad and improperly included substantive issues to be determined
at trial. The court also held that the claims, as defined by the
plaintiff, did not raise common issues among the class
In dismissing the certification application, the court provided
substantial guidance on suitable amendments and expressly invited
the plaintiff to re-apply for certification.4 The
guidance extended beyond minor adjustments. The court provided
suggested revisions to the class definition and common issues and
suggested that these amendments would result in certification upon
While the British Columbia Class Proceedings Act gives
courts the power to make amendments, it is arguable how far this
power extends: does it allow courts to make 'wholesale
changes' beyond minor adjustments?5
The Tonn case demonstrates that the failure of a
plaintiff to adequately identify and define the proposed class will
not always be fatal to a certification application.6
Courts are using their powers to look beyond the plaintiff's
materials to the factual circumstances of the case and determine
whether the class is capable of being defined as
required under the CPA. This trend suggests that there may
be limited scope for defeating class certification on the issue of
identifiable class alone if the facts are such that there is a
potential for the class to be redefined.
1 Tonn, supra note 1 at para. 127,
Douez v. Facebook,
Inc., 2014 BCSC 953, 77 B.C.L.R. (5th) 116 at para. 365; see
also Godfrey v. Sony Corporation, 2016 BCSC 844, 
B.C.W.L.D. 3750; Seidel v. Telus Communications Inc., 2016
BCSC 114,  B.C.W.L.D. 1052.
2 Ibid at paras. 2-5.
3 Tonn, supra note 1 at paras. 54, 55,
57, 83, 88, 109, 115, 122.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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