The answer is yes. On April 6, 2017, in a novel case, the
British Columbia Supreme Court held that a conventional or
individual action can be converted into a class proceeding by
amending the claim to invoke the provisions of the British Columbia
Class Proceedings Act. 1 Such orders are
discretionary. While the issue is novel in B.C., amendments
converting an action to a class proceeding had been permitted in
Ontario 2 and Saskatchewan. 3 The case is
significant for defendants in litigation who may think they are not
at risk for being the target of a class proceeding if an individual
claim (or claims) on the same issue has already been commenced.
The dispute between the parties arose from the termination of a
casino operation services agreement. Specifically, the plaintiff
alleged that the defendant continued to withhold revenues owing to
The court held that conversion of an individual action to a
proposed class proceeding by way of an amendment to the Notice of
Civil Claim is permitted under both the British Columbia Class
Proceedings Act and the British Columbia Rules of Court, and
is consistent with the overarching objectives and the inherent
flexibility of class proceedings. In exercising its discretion to
permit such amendments, the court held the following factors are
history of the proceedings;
the length and reason for the delay
in seeking to convert the action;
the expiry of any limitation
the presence or absence of other
prejudice to either party;
the likelihood or otherwise of a
proper class eventually being defined;
the conduct of the parties; and
the objectives of a class proceeding:
judicial economy, access to justice and behavior modification.
Second, the court held that the conversion would not advance the
objectives of the Class Proceedings Act. The proposed
class involved the plaintiff, its related parties, and three other
service providers, each of whom the court found were sophisticated
parties. The court held there was no issue with access to justice.
Since none of the other entities had commenced actions against the
defendant or demanded repayment of the fees, the court held that
the proposed class proceeding would not advance the goal of
judicial economy. Since it was a contractual dispute, there was no
issue of behavior modification at stake.
Ultimately, the court determined that it was not an appropriate
case to grant the conversion for two reasons. First, the court held
that the applicant delayed in bringing forward its application,
without adequate explanation. The plaintiff filed its claim in
March 2015, took various other steps in the litigation, then filed
certification and claim amendment materials in September 2016.
1 Great Canadian Gaming Corporation v. British
Columbia Lottery Corporation,2017 BCSC 574
2 Bellefeuille v. Canadian Pacific Railway Ltd.,
2010 ONSC 5499
3 Gaudet v. Sister Servants of Mary Immaculate,
2007 SKQB 54
"Or you can trade it all for what's behind door number two..." Be honest – whenever you see this set up on a game show you secretly want the contestant to give up the sure thing and take a peek behind door number two.
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