In recent certification decisions, BC courts have
demonstrated a willingness to permit plaintiffs to amend their
materials and re-apply for certification, often with substantial
guidance from the court on the scope of the amendments. In Winterv. British Columbia, the BC Supreme Court once again
permitted such a re-drafting, though in this case imposing a strict
time limit and indicating that this would be the plaintiff's
final opportunity to amend. 1
Winter is a potential class action involving former
employees of the British Columbia College of Teachers. In January
2012, the Province dissolved the College and replaced it with the
Teacher Regulation Branch of the Ministry of Education.
2 Most of the employees of the College were offered and
accepted employment with the Ministry upon dissolution of the
College. Ms. Winter now seeks to certify a class action to recover
the severance payments stipulated in the employees' original
employment contracts with the College 3
At the certification hearing, the Province argued that the
claims did not raise common issues, the class action was not a
preferable proceeding, and the plaintiff had not produced a
workable litigation plan as required by s. 4(1)(e)(ii) of the Class Proceedings Act.
The court agreed that the plaintiff's proposed common issues
were too general and superficial for the purposes of certification.
In rejecting the plaintiff's common issues, however, the court
also expressed "considerable sympathy" for the
plaintiff's submission that the claim should be amenable to a
class action proceeding. The court then identified some of the
common legal and factual issues that might be appropriate for
The court also rejected the Province's challenge to the
plaintiff's litigation plan, explaining that the Province's
objections were not supported by existing case law. Though the plan
did not set out concrete proposals, it was sufficient for the time
being and could be clarified at future case management
In the result, the court agreed with the Province "that
perpetual re-drafting must be discouraged and that there must come
a point at which the procedural guillotine must fall". The
court granted the plaintiff 60 days to file a restatement of the
common issues for certification. If the plaintiff failed to file a
restatement, the certification application would be dismissed.
This case illustrates the challenges facing defendants who
oppose certification on the basis of the proposed common issues or
litigation plan. Here, the opportunity to amend was clearly
motivated by the court's sympathy for the claim as a whole and
its suitability for a class action proceeding. 7 While
this case represents another example of courts continuing to assist
plaintiffs in meeting the certification requirements, the
court's recognition of the importance of finality is a welcome
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