The Change Up: Class Action Certifications Reformulated On Appeal

A certification application is a necessary step in which a proposed representative plaintiff shows the court why the action should proceed as a class action. In order to be certified, the proposed representative plaintiff must meet a legislated five-part test. This legislated test is relatively uniform among the common law provinces.1 However, the willingness of courts to revisit these statutory requirements and permit a plaintiff to rework their certification application on appeal (to address the deficiencies that caused them to fail certification), varies among the provinces.

In a recent decision, Andriuk v Merrill Lynch, the Alberta Court of Appeal dismissed an appeal of a denied certification motion.2 In Andriuk, the plaintiffs alleged that Merrill Lynch intentionally depressed the price of a speculative junior bio-tech stock. In the Court of Queen's Bench, Madam Justice Martin denied certification on the basis that it lacked clear articulation of the requisite components of certification. Madam Justice Martin did acknowledge that certification should be...