Canada: Amending Certification Applications: When Does The "Procedural Guillotine" Fall?

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 Winter v. 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 certification. ⁴

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 conferences.⁵

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. ⁶

Our comments

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 development.

Footnotes

1 Winter v. British Columbia, 2016 BCSC 2288 [Winter].

2 Teachers Act, S.B.C. 2011, c. 19.

3 The plaintiff relies on Maxwell v. British Columbia, 2014 BCCA 339.

4 Winter at paras. 33, 37-40.

5 Ibid. at paras. 49-50

6 Ibid. at para. 53.

7 See, for example, ibid. at paras. 37, 52.

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