Come Fly With Me: Non-Resident Class Plaintiff Picks Litigation Travel Companion For BC Class Proceedings

The British Columbia Court of Appeal has confirmed in Prince George Airport Authority Inc. v. Roy¹ that a non‑resident's commencement of a proposed class proceeding does not bar a subsequently added British Columbia resident from applying for certification under s. 2 of the Class Proceedings Act (the "CPA"). Dismissing the defendants' appeal, the Court held that the CPA's text, context, and purposes support a flexible approach: once a BC‑resident class member is added as a plaintiff, that person may "commence" and pursue certification under s. 2(1)–(2), regardless of whether they filed the original notice of civil claim. The Court further emphasized the CPA's broad procedural discretion under ss. 12 and 40 and its objectives—access to justice, judicial economy, and behavior modification— prevail over rigid, formalistic readings, that would stymie otherwise viable class claims.

Background

The original plaintiff, Mr. Roy, commenced overlapping claims in the BC Supreme Court and the Federal Court alleging that Canadian airport authorities charged unlawful fees to airline employees and family members traveling on employee passes. Anticipating jurisdictional challenges, he initially pursued the Federal Court action. However, when a subsequent decision cast doubt on subject-matter jurisdiction, the parties consented to dismiss the action, allowing Mr. Roy to continue in BC.

The Defendants challenged the BC action on the basis that Mr. Roy was not a BC resident for s. 2(1) purposes. Before the chambers judge, a BC‑resident class member, Mr. Scott, applied to be added as a plaintiff under Rule 6‑2(7) of the Supreme Court Civil Rules. The chambers judge made three key rulings: the action was not a nullity or an abuse of process; Mr. Scott could be added as a plaintiff; and the defendants' alternative request to strike all class action references from the pleadings was refused. The defendants appealed on the narrow point that all class action references should be removed because only the original plaintiff who commenced the proceeding may apply for certification under s. 2(2).

The issue on appeal

Whether, under s. 2 of the CPA, only the original plaintiff who filed the action may apply for certification, such that adding a BC‑resident plaintiff after filing cannot cure a non‑resident's inability to certify.

The Court's holding

The Court dismissed the appeal. A BC‑resident plaintiff added to the action may apply for certification under s. 2(2), and the notice of civil claim need not be stripped of class action references. The Court also dismissed the plaintiffs' preliminary procedural application to quash the appeal on procedural grounds, finding no unfairness in the chambers judge's consideration of alternative relief.

Statutory interpretation of s. 2 CPA

The Court rejected a strict, literal reading of the phrase "commences a proceeding" in s. 2(1) that restricts certification exclusively to the person who filed the originating pleading. Instead, applying the modern approach to statutory interpretation and s. 8 of the Interpretation Act, the Court read s. 2 in its full text, context, and purpose:

• The mandatory "must" in s. 2(2)–(3) governs the procedural prerequisites for certification and timing; it does not impose an immutable identity between the filer and the certifier.
• The words "commence a proceeding" are not defined in the CPA and must be interpreted in the context and purpose of class proceedings, rather than as a technical filing timestamp that rigidly freezes the party composition.
• The CPA is procedural and designed to be flexible. Sections 12 and 40 preserve the Court's supervisory powers and the application of the Supreme Court Civil Rules, which permit party additions or substitutions where appropriate.
• A contrary interpretation would produce absurd, inefficient results—requiring abandonment and refiling any time the original plaintiff cannot continue—contrary to access to justice, judicial economy, and efficient class action management.

Interplay with civil procedure and representative plaintiff requirements

The Court emphasized that Rule 6‑2(7) of the Supreme Court Civil Rules permits adding or substituting parties where it is just and convenient. There is no conflict between the Supreme Court Civil Rules and the CPA. Section 4 of the CPA requires a suitable representative plaintiff at certification, but it does not bind representativeness to the individual who originally filed the claim. The Court endorsed a practical approach under which a BC‑resident class member added as a plaintiff can assume the role of proposed representative and seek certification.

Alignment with and distinction from prior jurisprudence

• The decision is consistent with prior judicial guidance that the CPA should be interpreted generously to advance its objectives.
• The Court distinguished its earlier decision in MM Fund,² which confirmed that only a BC resident has standing to advance a class action in BC, noting that MM Fund did not consider the addition of a BC-resident plaintiff post‑filing.
• The Court cited decisions allowing post-filing CPA amendments and plaintiff substitution, emphasizing that form should not override substance when procedural fairness is maintained.

Practical implications for class actions in British Columbia

This decision provides concrete guidance on managing plaintiff selection before certification:

• Correcting Residency Defects: Adding a BC‑resident class member as a plaintiff can cure an initial residency defect for the purposes of seeking certification. Parties need not abandon and refile a parallel proceeding solely to meet the residency requirements.
• Procedural Discretion: Courts retain broad discretion under ss. 12 and 40 and the Supreme Court Civil Rules to ensure that procedural steps promote efficiency and fairness, including party addition or substitution and, where necessary, nunc pro tunc orders.
• Resistance to Formalistic Challenges: Defendants should anticipate that formalistic challenges aimed at thwarting a proposed class action by disputing the original plaintiff's identity will face resistance where a suitable BC‑resident class member is prepared to step in and seek certification.
• Post-Filing Amendments: Plaintiffs should continue to prioritize early identification of a suitable BC‑resident as the class representative. Where timing or jurisdictional strategy requires a different sequencing, the Court of Appeal's reasons confirm that later amendments to add a qualified class plaintiff remain available.
• Substantive Fairness over Form: Courts will prioritize the viability of class action over technical defects, ensuring that procedural fairness can be accorded to parties who have meritorious class claims.

Why this matters

This is an important, practical ruling on the gatekeeping function of s. 2 of the CPA. It confirms that class proceedings in BC are not defeated by an initial misstep in selecting the representative plaintiff. Courts may permit a BC-resident class member to be added to the action and to advance certification, harmonizing the CPA's flexible, remedial objectives with the Supreme Court Civil Rules. For defendants, efforts to force putative class actions into individual claims based on the theory that only the "original" filer can certify will face strong pushback from the court. For plaintiffs, the decision affirms procedural flexibility—while not excusing compliance with statutory requirements—so long as fairness is maintained, and class action objectives are achieved.

Footnotes

1. 2025 BCCA 442.
2. 2024 BCCA 163.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2025