Alberta Class Proceedings Act
New legislation introducing a class actions regime in the Alberta Court of Queen's Bench and Court of Appeal.
- Court of Queen's Bench
- Court of Appeal
Government of Alberta
|December 2000||Final Report released by ALRI|
|2003||Class action legislation introduced|
|April 2004||Alberta Class Proceedings Act came into force|
The Alberta Law Reform Institute issued a report in December 2000 containing detailed recommendations for class action reform, suggesting that legislation be adopted.
On April 1, 2004, the Alberta Class Proceedings Act came into force.
The phenomenon of many individuals having the same or similar claims against one or more defendants is a modern reality. If dealt with on an individual basis, this litigation can be costly, complex and cumbersome. As they have in other jurisdictions, lawsuits involving large numbers of claimants are being brought in a wide variety of cases. Recent Alberta examples include the much-publicized wrongful sterilization litigation, the residential school litigation and the pine shakes litigation. Examples elsewhere include cases involving defective consumer or industrial products, misrepresentation of products or services, securities breaches, mass disasters and creeping disasters (such as injury to health over a prolonged time period or environmental damage), to name but a few. Courts in Alberta face the challenges of the growing complexities of litigation.
Alberta Class Proceedings Act
- The Act does not provide for the establishment a class action fund (unlike Ontario and Quebec)
- The "no cost" recommendation contained in the Final Report was not adopted (at 154). "Parties in an Alberta class proceeding will be subject to pay legal costs and disbursements under the usual, loser-pay rules applicable to most proceedings in Alberta." (Alberta's New Act)
- Non-profit corporations may act as representative plaintiffs in a class action (unlike British Columbia and Ontario)
- There must be a suitable representative plaintiff for all classes and subclasses of plaintiffs;
- The claims of prospective class members must raise a common issue, whether or not the common issue predominates over issues affecting only individual prospective class members (this feature is common to other Canadian provinces but different from American practice);
- A class proceeding must be the preferable procedure for the fair and efficient resolution of the common issues having regard to a number of factors expressly set out in the new Act;
- The Statement of Claim must disclose a cause of action; and
- There must be an identifiable class of two or more persons.
Under the new Alberta Act, certification is not barred solely because:
- The number or identity of each prospective class member has not been ascertained or "may not be ascertainable, " or
- The claims involve individual assessments of damages, separate contracts or different remedies for each class member.
Alberta's New Act
- National Class Actions in Alberta: The class actions have to be divided into resident and non-resident classes. "Alberta residents who meet the criteria to be members of the certified class of plaintiffs are automatically bound by the outcome of the lawsuit, unless they opt out. Non-Alberta residents who meet the criteria to be class members must opt in, or they will not benefit from the lawsuit. This approach is the same as British Columbia's but different from Ontario's, which does not require class definitions to reflect residency and does not require non-residents to opt in." (Alberta's New Act)
- Discovery: The rights of oral and documentary discovery are the same as in any other proceeding.
- Does a Statement of Defence have to be filed before a certification motion? In Ontario and B.C., the courts usually do not require a Defence. This is important, not only tactically, but because filing a Defence triggers full discovery rights under provincial rules of civil procedure. In Alberta, an Affidavit of Records (known elsewhere as an Affidavit of Documents) is presumptively required to be served 90 days after the Defence is filed, or costs sanctions apply;
- What is the onus on a plaintiff to provide substantive, first-hand affidavit evidence on a certification motion? Plaintiffs often commence a certification motion with a solicitor's affidavit supporting certification. The Supreme Court has held that there must be "some basis in fact" to certify a class proceeding. The necessary evidence typically depends on the nature and complexity of the action but should support the plaintiffs' proposed class definition(s) and alleged common issues;
- What is the extent of pre-certification documentary discovery rights? In Ontario and B.C., a complete Affidavit of Documents is usually not required but relevant documents may be demanded and ordered to be produced.
Alberta's New Act
- Limitation Periods: Limitation periods are automatically suspended as of the commencement of the proceeding. "This rule applies whether or not the class proceeding is ultimately certified. The limitation period resumes running against the person when he or she is excluded from the class (by opt-out or court ruling), when certification is denied or abandoned, or if the class proceeding ends (by decertification, settlement, dismissal or discontinuance)." (Alberta's New Act)
- Contingency Fee Agreements "must be approved by the court before or at the certification of the class proceeding. The timing of such an approval is, within Canada, unique to Alberta. Like other jurisdictions, court approval is also needed when a class action is settled." (Alberta's New Act)
The report contained the following recommendations:
- criteria that must be met to establish a class action;
- a certification procedure to determine that it is appropriate for an action to proceed as a class action;
- conduct of the proceeding by a representative plaintiff whose suitability is determined by the court;
- court-approved notice to class members (or potential class members) that a class action has been certified;
- an opportunity for resident class members to opt out of the class proceeding and for non-resident class members to opt in;
- provision for the formation of subclasses, each with its own representative plaintiff, where some members of the main class share issues that are not common to other members of the main class;
- active judicial case management of the proceeding;
- notice to class members that the common issues in the class action have been resolved, whether by settlement or judicial disposition;
- provision for the determination of individual issues separate from the common issues;
- aggregate or individual assessment of damages;
- various provisions designed to ensure the protection of the interests of class members, such as:
- court approval of a settlement or discontinuance of the action,
- court approval of an agreement for the payment of fees and disbursements entered into between the representative plaintiff and class counsel, and
- judicial discretion to allow class members to participate in the proceeding;
- provisions regarding the suspension of limitation periods; and
- binding effect of the outcome of the action on class members.
We also make recommendations for defendant class actions. These recommendations a re based o n the plaintiff class action p rovisions, but with certain modifications to take into account differences in the position of plaintiffs and defendants in litigation.