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Tuesday, October 08, 2019 @ 8:46 AM  

Application by two non-parties, Home Depot and Wal-Mart, for a right of appeal from an order approving settlement of a class action. The applicants were members of a plaintiff class in a certified class proceeding, but neither was a representative plaintiff. The proceeding alleged certain credit card companies engaged in anti-competitive practices in setting the price of interchange fees. The applicants appeared at the application to approve the settlement and made submissions opposing approval in their capacity as class members. Their proposed appeal raised a preliminary issue of whether a class member who was not a representative plaintiff had a right to appeal an order approving a settlement. An appellate chambers judge referred two questions to the Court of Appeal asking whether an appeal lay in respect of a settlement order made under the Class Proceedings Act (CPA), and if so, whether such an appeal could be properly brought by a class member with or without being added as a party to the action.

HELD: Application dismissed. Having an interest in an order's subject matter and making submissions in the court below was not, without more, sufficient to confer party status on the applicants, such that a right of appeal arose for the purpose of s. 6 of the Court of Appeal Act (CAA). The CPA drew important distinctions between class members and representative plaintiffs. Insofar as class members had procedural rights, they were identified and provided for within the CPA. A class member did not have the legal status of a party in relation to the settlement or its approval by the court. The CPA did not offer any statutory basis that conferred a right to appeal a settlement approval matter upon a class member. In fact, the precise language of s. 36 of the CPA supported an inference the Legislature intended to exclude a right of appeal for class members in relation to orders approving settlement. The applicants failed to establish a basis for an exercise of the Court's residual jurisdiction under s. 9(3) of the CAA to add them as parties to the appeal. This was not a case in which an interested person to a proceeding ought to have been heard and was not. The applicants' interests were represented at the hearing, and their objections were addressed in the reasons approving the settlement. The merits of the proposed appeal did not favour the relief sought by the applicants.

Coburn and Watson's Metropolitan Home (c.o.b. Metropolitan Home) v. Home Depot of Canada Inc., [2019] B.C.J. No. 1644, British Columbia Court of Appeal, D.C. Harris, J.E.D. Savage and J.J.L. Hunter JJ.A., August 30, 2019. Digest No. TLD-October72019005