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CIVIL PROCEDURE - Class or representative actions - Certification

Thursday, July 19, 2018 @ 5:36 AM  


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Appeal by the representative plaintiff in a class action, Thorne, from an order certifying a counterclaim by the defendant, the College of the North Atlantic. A proposed class action alleged that the College breached a contractual obligation to pay a cost of living allowance to instructors and support staff who lived and worked in Qatar between 2008 and 2011. In 2014, the action was certified and Thorne was appointed the representative plaintiff. In 2015, the College filed a defence and counterclaim. The College denied a breach of contract based on a salary cap provision in a comprehensive agreement between it and Qatar that the College alleged limited amounts payable to employees based on their qualifications. In its counterclaim, the College alleged that some class members, including Thorne, were overpaid, thereby entitling it to reimbursement. The order under appeal certified the College's counterclaim as a common issue and amended the certification order accordingly. Thorne submitted that the counterclaim did not comply with the statutory certification provisions and did not meet the statutory criteria for certification.

HELD: Appeal allowed. The College was neither a plaintiff acting on behalf of class members nor a defendant to two or more actions. The essence of the College's counterclaim was that of a defendant class action, in which the College sought to certify against a group of individuals as a class. The Class Actions Act did not provide for certification of a class of defendants or for a sole plaintiff to apply to certify an action against a class of defendants. Nor was there any provision for the appointment of a representative defendant to fairly and adequately represent the interests of a defendant class. The College was not able to indirectly use a counterclaim to certify what it was unable to do as a plaintiff. In addition, the counterclaim failed to disclose a cause of action, as it sought a remedy based on a contract between the College and Qatar to which the plaintiffs were not privy or otherwise bound. In any event, there was no commonality to the issue between members of the class. The counterclaim was accordingly struck.

Thorne v. College of the North Atlantic, [2018] N.J. No. 182, Newfoundland and Labrador Court of Appeal, B.G. Welsh, L.R. Hoegg and F.P. O'Brien JJ.A., June 6, 2018. Digest No. TLD-July162018007 AOP: Civil Litigation