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End of the Road: BC court refuses adjournment to allow plaintiff to supplement certification record

Class action defendants in British Columbia often have to contend with shifting certification records and evolving case theories. BC courts have  often adjourned certification hearings so that plaintiffs may amend their pleadings, revise common issues and/or seek further evidence necessary to satisfy the certification criteria.[1] But according to a recent decision from the BC Court of Appeal plaintiffs should not count on such adjournments in order to remedy defects in their certification application (Williams v. Audible Inc., 2023 BCCA 475).  

In Williams, the plaintiff sought certification of a class proceeding in which he alleged that an agreement between Apple Inc. and Audible Inc. for the distribution and sale of audiobooks violated the Competition Act. Originally, the plaintiff alleged that the agreement contained several provisions that offended the Competition Act, including provisions that imposed restrictions on Apple and provisions that imposed restrictions on Audible. As is common in competition class actions, the plaintiff’s certification record included an expert report that purported to show plausible methodologies for (i) assessing the harm to proposed class members caused by the alleged wrongful conduct and (ii) calculating damages arising from that conduct.

Before the certification hearing, the plaintiff amended his pleading several times to narrow the scope of his claims. At the hearing, he narrowed them even further: he sought certification only in relation to the restrictions on Audible and no longer alleged that the restrictions on Apple violated the Competition Act.

This created an evidentiary problem for the plaintiff: his expert report no longer aligned with his case theory. In particular, the expert report did not provide a methodology to assess harm or calculate damages flowing only from the narrower form of wrongdoing that the plaintiff was now alleging. The plaintiff argued that this could be solved by an adjournment so that he could seek a revised expert report, but the chambers judge refused: he concluded that the plaintiff was seeking certification of a new and substantially different theory and that it would be “unfair and prejudicial to the defendants” to allow the plaintiff to seek further expert evidence (Williams v. Audible Inc., 2022 BCSC 834 at para. 148).

The Court of Appeal dismissed the plaintiff’s appeal. The Court acknowledged that a chambers judge has broad discretion under section 5(6) of the Class Proceedings Act to adjourn a certification hearing to permit pleadings amendments and further evidence. The Court noted, however, that the plaintiff had pointed to no cases in which adjournments were granted to accommodate a “fundamental revision to the plaintiff’s claim in circumstances where the opposing party would be prejudiced as a result” (para. 53). The Court found no errors in the chambers’ judge’s decision to refuse an adjournment and, in so doing, rejected the argument that the refusal was “antithetical” to the “fluid and flexible approach” ordinarily taken to applications to certify class proceedings (para. 36).




[1] See, for example, MacKinnon v. Pfizer Canada Inc., 2021 BCSC 1093; Linza v. Metric Modular, 2023 BCSC 1196; WN Pharmaceuticals v. Krishnan, 2023 BCCA 72.



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