Class Actions in Canada: proceeding on a national basis is not always the preferable procedure
Canadian courts often certify national class actions involving consideration of legislation from multiple provinces, like provincial consumer protection statutes that differ somewhat from province-to-province. But in the recent decision of Virani v Uber Portier Canada Inc., 2023 ABKB 240, differences in provincial employment legislation proved to be a stumbling block for the proposed national class and the Court certified the proceeding only for residents of Alberta. Virani suggests that if the case concerns the application of provincial legislation to highly variable facts, a national class proceeding may not be the preferable procedure.
Virani concerns whether the proposed class members are properly characterized as employees under provincial employment legislation. The representative plaintiff proposed a class proceeding for class members in all provinces other than Prince Edward Island and Ontario (a similar class proceeding had already been certified for class members in Ontario).
The Court’s certification analysis focused on whether a class proceeding was the preferable procedure. The Court found that a class proceeding would be the preferable way to resolve the central question of the employment status of Alberta class members, as compared to resolving the issue through individual claims - a process that would no doubt spawn requests for case management and test cases to simplify resolution of the claims as a whole, begging the question of why a class proceeding was not used in the first instance.”
However, this reasoning did not apply to the national dimension of the proposed class. A national class action would be unmanageable from an evidentiary perspective and require the Alberta Court to interpret and apply legislation in other provinces that might lead to different results. While employment legislation is functionally similar at a high-level, there is still variation, such as how an employer or employee is defined. Further, there are different administrative regimes in different provinces, which may provide a preferred remedy for proposed class members in those provinces.
Ultimately, the Court concluded that while the differences in the employment legislation could be accommodated where that was the principal variable, those differences become insurmountable where, as in Virani, the variable legislation must be applied to individual circumstances that changed over time. The Court concluded that the “combined effect would be a class action that is inherently unmanageable or requires an inordinate resources from the courts and litigants to complete.” As result, the Court refused to certify a national class proceeding, and instead certified a class proceeding for only Alberta.