The Preferability Analysis in Multi-jurisdictional Class Proceedings

  • October 05, 2022
  • Annie Legate-Wolfe

In N&C Transportation Ltd. v. Navistar International Corporation, 2022 BCCA 164, the appellants challenged an order certifying a class action as a multi‑jurisdictional proceeding. The British Columbia Court of Appeal set out the factors applicable when weighing the benefits of a multi‑jurisdictional class proceeding against competing extra-provincial actions, including where a proposed settlement has been reached.

Background

The action alleges defects in the design, manufacture, and sale of certain Navistar heavy-duty diesel engines sold between 2010 and 2014. Several class actions were filed across Canada, including in British Columbia, Alberta, Manitoba, Ontario and Quebec. The British Columbia action at issue in the appeal was certified as a national, opt-in proceeding in 2016.[i] All appeals were exhausted by 2019.

Following the certification proceedings, certain amendments to the British Columbia Class Proceedings Act, RSBC 1996 C. 50 (the “BC CPA”) came into force, allowing for the certification of a multi‑jurisdictional, opt-out class proceeding. On that basis, the plaintiffs brought an application to amend the certification order to constitute it as a national, opt-out action.

By the time the plaintiffs’ application was heard, two settlements had been entered into by the defendants with plaintiffs in other jurisdictions: (i) a Quebec resident settlement in Quebec (authorized for settlement purposes prior to the application), and (ii) a national settlement, excluding residents of Quebec and British Columbia, entered into in Alberta. Notwithstanding the settlements in other jurisdictions, the Chambers Judge certified the British Columbia action as a multi-jurisdictional, opt-out class action for “all residents of Canada who meet the class definition, except those resident in Quebec.”

The appellants argued that the Chambers Judge erred in his assessment of the factors under s. 4 of the BC CPA, as amended, and was bound by the principle of judicial comity to adjourn the plaintiffs’ application pending the resolution of the proposed settlements in Alberta and Quebec.