Time for Change: Advancing the Objectives of Class Actions by Removing the “Residency Requirement” from British Columbia’s Class Proceedings Act

• Author: Alex Farrant
• Pages: 201-232

201

Time for Change: Advancing the Objectives of Class

Actions by Removing the “Residency Requirement”

from British Columbia’s Class Proceedings Act

Alex Farrant

AbstrAct: This paper provides an examination of the “residency require-

ment” found in section 2 of the British Columbia Class Proceedings Act

[BCCPA]. This requirement prohibits non-resident claimants from com-

mencing class proceedings in British Columbia. Drawing on the decision

in Nevsun Resources Ltd v Araya [Nevsun], this paper elucidates how the

residency requirement is incongruent with the objectives of class pro-

ceedings legislation: judicial economy, access to justice, and behaviour

modification. This conclusion, which is supported by a close review of the

decision of the Supreme Court of British Columbia in Nevsun, is problem-

atic, given the proliferation of transnational tort litigation in recent years.

This trend is characterized by claimants from foreign jurisdictions seeking

a remedy for gross human rights violations and similar harms allegedly

perpetrated by multinational corporations headquartered in Canada and

other predominantly capital exporting countries. The factual matrices of

these claims often lend themselves to potential class proceedings. As these

claims are likely to continue, including in British Columbia, this paper

argues that the BCCPA should be amended to allow classes consisting

entirely of foreign claimants to commence a class proceeding. This would

benefit the parties, particularly plaintiffs with little resources, the courts,

and the interests of justice more broadly. This paper concludes by rec-

ommending that the residency requirement be removed to conform with

class proceedings legislation in other Canadian provinces, such as Alberta,

Ontario, and Nova Scotia. In the alternative, an exception should, at least,

be made in cases where denying certification to claimants simply because

they are non-residents would result in a “substantial injustice.” This paper

can therefore inform lawmakers in British Columbia and other provinces

that currently maintain a residency requirement in their class proceedings

legislation, including Saskatchewan and Manitoba.

203

TIME FOR CHANGE: ADVANCING

THE OBJECTIVES OF CLASS ACTIONS

BY REMOVING THE “RESIDENCY

REQUIREMENT” FROM BRITISH

COLUMBIA’S

CLASS PROCEEDINGS ACT

Alex Farrant*

A. INTRODUCTION

In recent years, courts have seen a proliferation of transnational tort liti-

gation, characterized by claimants seeking remedies in foreign courts for

alleged human rights violations committed by multinational corporations

(MNCs). Canada is no exception. Canadian courts, particularly in Ontario1

and British Columbia,2 have played host to such disputes. The factual matri-

ces of these claims often lend themselves to potential class proceedings, and

in some cases, claimants have pursued class certication. Class proceedings

can, after all, serve as an eective and ecient means of delivering mass jus-

tice. The Supreme Court of Canada (SCC) has stated that class proceedings

serve judicial economy, access to justice, and behaviour modication, and

that applications for certication pursuant to comprehensive class proceed-

ings legislation should be considered in light of these principal advantages.3

* Alex Farrant is a recent graduate of the Peter A. Allard School of Law at the

University of British Columbia. Alex was called to the bar of British Columbia in

spring 2023 and currently practises in the litigation group in the Vancouver oce of

Norton Rose Fulbright LLP (Canada). The views expressed in this article are those of

the author and do not reflect those of his employer.

1 See, for example, Das v George Weston Limited, 2018 ONCA 1053 [Das]; Choc v Hudbay

Minerals Inc, 2013 ONSC 1414 [Choc]; Chevron Corp v Yaiguaje, 2015 SCC 42 [Yaiguaje].

2 See, for example, Garcia v Tahoe Resources Inc, 2017 BCCA 39 [Garcia].

3 See Hollick v Toronto (City), 2001 SCC 68 [Hollick]; Western Canadian Shopping

Centres Inc v Dutton, 2001 SCC 46 [Dutton].