Accounting for Preference: BCCA Reaffirms the Wide Discretion of Class Action Certification Judges
The BC Court of Appeal recently reaffirmed the principles of preferability in class action certification proceedings in the case of Vaugeois v Budget Rent-A-Car, wherein the certification judge had determined that a class proceeding was not the preferable forum to decide the disputes between vehicle renters who had allegedly been improperly charged for vehicle repairs.
While the Court of Appeal indicated that the standard of review with respect to the preferability question was determinative of the appeal, Willcock JA’s reasons illuminated several key points.
First, the Court of Appeal restated that the standard of review is very high when an appeal court is reviewing a certification judge’s decision on preferability. Willcock JA stated that special deference should be paid to the weighing of factors by the chambers judge and the appeal court must determine whether any errors in principle are present which are directly relevant to the conclusions reached.
Second, where the certification judge considers the relevant elements of the three principal advantages of class proceedings, there will generally be no appealable error. In this case, the certification judge considered the three elements as follows:
- Judicial economy
While the difficulty in assessing individual claims factored heavily in the analysis, it was also clear to the Court of Appeal that the certification judge had considered the value of resolution of the common issues. The Court of Appeal also pointed out that the certification judge properly recognized that success for the class would fail to advance the cause of any individual plaintiff and the dismissal of the class action would not finally determine the claim of any class member. The Court of Appeal emphasized at para. 14 that the “fact the litigation would not finally determine the claims either way, must be weighed in assessing whether certification will serve the end of judicial economy” (emphasis in original).
2. Access to justice
The Court of Appeal noted the arguments of the proposed class members that a class proceeding is the only way for most members to obtain any remedy and in particular the relief sought from the BC Supreme Court (rather than in Provincial Court proceedings). However, the certification judge concluded that individual trials would have been inevitable in this case since individual trials would have been required to determine liability for each claimant even if the common issue of conspiracy was proven. Few plaintiffs would have been spared the expense and risk of trial.
The Court of Appeal also stated that the possibility that claims will not be advanced at all if the class action is not certified is a factor that should be considered at the certification stage. However, this depends on the respondents being inclined to settle claims if the common issues are determined in favour of the class and in this case it was apparent that the respondents would be unlikely to do so.
3. Behaviour modification
The Court of Appeal also deferred to the reasoning of the certification judge that behaviour modification could be achieved by obtaining relief in Provincial Court for those claims which were not statute barred. The Court of Appeal also concluded that it was not a reviewable error for the certification judge to place weight on the ability of the Director to bring an action pursuant to the Business Practices and Consumer Protection Act [BPCPA].
The Court of Appeal in this case approved of certification judges drawing certain assumptions in assessing the preferability of class action proceedings. In particular, Willcock JA held that the certification judge did not err:
- in assuming that the Provincial Court would fairly use the tools at its disposal to resolve the disputes of claimants including the discretion available to judges pursuant to the Small Claims Rules to determine evidence required and procedure to be followed including with respect to the production of relevant information; and
- in assuming that the officers of the Legislature would use the available tools to protect consumers and effect behaviour modification, including the ability of the Director to bring an action pursuant to the BPCPA even where, as in this case, there is no indication that the Director will in fact take up the cause.
This decision opens up the possibility of further permissible assumptions with respect to the preferability analysis, including where proposed class members may have alternate but uncertain avenues of relief.
Vaugeois v Budget Rent-A-Car of B.C. Ltd., 2017 BCCA 111
Date of Decision: March 8, 2017
access to justice behaviour modification British Columbia Court of Appeal certification motion class action judicial economy preferability standard of review