McKay v. CDI Career Development Institutes Ltd. et al., (1999) 18 B.C.T.C. 198 (SC)

• Judge: Blair, J.
• Court: Supreme Court of British Columbia (Canada)
• Case Date: March 11, 1999
• Jurisdiction: British Columbia
• Citations: (1999), 18 B.C.T.C. 198 (SC)

McKay v. CDI Career Dev. Institutes (1999), 18 B.C.T.C. 198 (SC)

MLB headnote and full text

Temp. Cite: [1999] B.C.T.C. TBEd. SE.054

Robert McKay (plaintiff) v. CDI Career Development Institutes Ltd. and A. Bruce McKelvey and Gord Fabbi and Jacqueline Harris and The Private Post Secondary Education Commission and John Doe (defendants)

(A980616)

Indexed As: McKay v. CDI Career Development Institutes Ltd. et al.

British Columbia Supreme Court

Vancouver

Blair, J.

March 11, 1999.

Summary:

The defendant CDI offered a network specialist program at a cost of $11,000. The plaintiff graduated from the program, but claimed that CDI, through advertising and representations, misled him as to the nature of the course, its contents and CDI's capac­ity to provide him with employment. The plain­tiff claimed that his experience was the same as that encountered by 454 other stu­dents enroled in the course at CDI's six campuses. The plaintiff applied under s. 2 of the Class Proceedings Act to certify a class action against CDI. The claim was based on mis­representation, breach of fiduciary duty, breach of contract and deceptive acts or practices contrary to the Trade Practices Act. The plaintiff sought appointment as the representative plaintiff. CDI applied under rule 18A to dismiss the claim or, alterna­tively, to strike the portions of the statement of claim advancing a claim for educational malpractice.

The British Columbia Supreme Court dismissed the application to dismiss either the entire claim or the educational malprac­tice claim. The court dismissed the certifi­cation application. Although the plaintiff estab­lished a cause of action which might succeed and an identifiable class, the various causes of action involved considerable indi­viduality, and the common issues advanced would require determination on an individual basis. The issues advanced by the plaintiff were not common to all class members, nor were they amenable to a class action. Fur­ther, a class action was not the preferable means of resolving the claims.

Practice - Topic 209.3

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class actions - Certification - Con­siderations (incl. when class action appro­priate) - See paragraphs 8 to 50.

Cases Noticed:

Abdool et al. v. Anaheim Management Ltd. et al. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453 (Div. Ct.), refd to. [para. 11].

Endean v. Canadian Red Cross Society (1997), 148 D.L.R.(4th) 158 (B.C.S.C.), refd to. [para. 12].

L.R. et al. v. British Columbia, [1998] B.C.T.C. Uned. F79 (S.C.), refd to. [para. 17].

Gould v. Board of Education of Regina (East) School Division No. 77 et al. (1996), 151 Sask.R. 189; 7 C.P.C.(4th) 372 (Q.B.), refd to. [para. 18].

Hodgkinson v. Simms et al. (1994), 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1; 117 D.L.R.(4th) 161 (S.C.C.), refd to. [para. 22].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 23].

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 28].

Rushak v. Henneken (1991), 4 B.C.A.C. 64; 9 W.A.C. 64; 84 D.L.R.(4th) 87 (C.A.), refd to. [para. 32].

Bittner v. Louisiana-Pacific Corp., [1997] B.C.T.C. Uned. E73; 43 B.C.L.R.(3d) 324 (S.C.), refd to. [para. 41].

Sutherland v. Canada (Attorney General) et al., [1997] B.C.T.C. Uned. G23; 15 C.P.C.(4th) 329 (S.C.), refd to. [para. 48].

Tiemstra v. Insurance Corp. of British Columbia (1996), 22 B.C.L.R.(3d) 49 (S.C.), refd to. [para. 49].

Statutes Noticed:

Class Proceedings Act, R.S.B.C. 1996, c. 50, sect. 4(1) [para. 10]; sect. 4(2) [para. 44]; sect. 7 [para. 10].

Trade Practice Act, R.S.B.C. 1996, c. 457, sect. 3(1) [para. 30]; sect. 22(1)(a) [para. 31].

Counsel:

J. Hanson, N. Brown and D. Framingham, for the plaintiff;

W.K. Branch and D.B. Lebans, for the defendants, CDI Career Development Institutes Ltd., A.B. McKelvey, G. Fabbi and J. Harris;

No one appearing for the defendant, Pri­vate Post Secondary Education Commis­sion.

This application was heard on December 17-18, 1998, at Vancouver, B.C., in Cham­bers, before Blair, J., of the British Colum­bia Supreme Court, who delivered the fol­lowing judgment on March 11, 1999.