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CIVIL PROCEDURE - Parties - Class or representative actions - Certification

Tuesday, April 20, 2021 @ 6:24 AM  


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Appeal by the plaintiff from a decision of a motion judge refusing to certify the appellant’s action as a class proceeding but granting it leave to reapply to certify the claim in restraint of trade. The respondent cross-appealed some of the conclusions reached by the motion judge on the restraint of trade claim. The appellant was a former customer of the respondent. The respondent provided waste disposal and recycling services to commercial customers. The appellant claimed that the respondent had been routinely overcharging its customers by billing them for certain municipal fines, levies and surcharges that it never actually incurred. The appellant sought damages for breach of contract and unjust enrichment for these overcharges. The appellant also alleged that the respondent routinely relied on certain clauses in its standard form of agreement to make it difficult for its customers to avoid an automatic renewal of the term or otherwise to terminate their agreements and change service providers. The appellant sought to have those clauses declared void and unenforceable as unconscionable and in restraint of trade. The chambers judge declined to certify the breach of contract claim because it did not raise common issues. The chambers judge also declined to certify the unjust enrichment claim because the claim would need to be recast and that it did not raise common issues. The chambers judge ultimately declined to certify the proposed restraint of trade claim as a class proceeding because the appellant had not shown that it was a suitable representative plaintiff for that class as it was no longer a customer of the respondent.  However, he granted the appellant, or a replacement representative plaintiff, leave to reapply to certify the restraint of trade claim and the associated common issues that he found suitable for the class.

HELD: Appeal allowed in part. Cross-appeal dismissed. The appellant was granted leave to re‑apply for certification of common issuesrelated to the claim in breach of contract. The proposed class definition was appropriate after minor modification, and the proposed common issues, considering the modified class definition, were appropriate for class‑wide adjudication. It was plain and obvious that the appellant’s claim in unjust enrichment, as pleaded, did not advance a proper cause of action. Neither of the two broad categories of circumstances in which claims in contract and unjust enrichment could coexist were present in this case. There was no prospect in the circumstances of this case, as pleaded, that the claim in contract could fail while its claim in unjust enrichment could succeed. It was not plain and obvious that members of the intended class for the restraint of trade claim could not pursue the declaratory relief sought. The conclusions of the motion judge properly applied the relevant legal framework and properly addressed the various concerns raised by the respondent in relation to the definition of the restraint of trade class.

676083 B.C. Ltd. v. Revolution Resource Recovery Inc., [2021] B.C.J. No. 344, British Columbia Court of Appeal, G.B. Butler, J.C. Grauer, P.G. Voith JJ.A., February 26, 2021. Digest No. TLD-April192021006