Amending Certification Applications: When Does The 'Procedural Guillotine' Fall?

In recent certification decisions, BC courts have demonstrated a willingness to permit plaintiffs to amend their materials and re-apply for certification, often with substantial guidance from the court on the scope of the amendments. In Winter v. British Columbia, the BC Supreme Court once again permitted such a re-drafting, though in this case imposing a strict time limit and indicating that this would be the plaintiff's final opportunity to amend. 1

Winter is a potential class action involving former employees of the British Columbia College of Teachers. In January 2012, the Province dissolved the College and replaced it with the Teacher Regulation Branch of the Ministry of Education. 2 Most of the employees of the College were offered and accepted employment with the Ministry upon dissolution of the College. Ms. Winter now seeks to certify a class action to recover the severance payments stipulated in the employees' original employment contracts with the College 3

At the certification hearing, the Province argued that the claims did not raise common issues, the class action was not a preferable proceeding, and the plaintiff had not produced a workable litigation plan as required by s. 4(1)(e)(ii) of the Class Proceedings Act.

The court agreed that the plaintiff's proposed common issues were too general and superficial for the purposes of certification. In rejecting the plaintiff's common issues, however, the court also expressed "considerable sympathy" for the plaintiff's submission that the claim should be amenable to a class action proceeding. The court then identified some of the common legal and factual issues that might be appropriate for certification. 4

The court also rejected the Province's challenge to the plaintiff's litigation plan, explaining that the Province's objections were not supported by existing case law. Though the plan did not set out concrete proposals, it was sufficient for the time being and could be clarified at future...

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