Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of s. 2 of the Class Proceedings Act (CPA) as to whether a later-added British Columbia resident plaintiff, who is a class member, may seek certification of a proceeding as a class proceeding

• Use of Supreme Court Civil Rules, particularly Rule 6-2(7), together with ss. 12 and 40 of the CPA, to add a plaintiff in a putative class proceeding without rendering the action a nullity or an abuse of process

• Whether references to a class proceeding and to the CPA in the notice of civil claim must be struck out when the action was originally commenced by a non-resident plaintiff who did not meet the residency requirement in s. 2(1) of the CPA

• The meaning of the phrase “commence a proceeding” in s. 2(1) of the CPA in light of the text, context, and purpose of the legislation, including its objectives of judicial economy, access to justice, and behaviour modification

• Scope of the court’s discretion under ss. 12 and 40 of the CPA, and under Rule 6-2(7), to add or substitute a plaintiff who will seek certification, and to treat that addition as compatible with s. 2 of the CPA

• Effect of the appellants’ failure to include in their notice of application in the Supreme Court the specific relief of striking class-proceeding references, and whether that omission barred them from advancing that relief and having it considered on appeal

Facts and procedural background

Brian Roy commenced an action in the Supreme Court of British Columbia on March 25, 2019 against numerous airport authorities, including Prince George Airport Authority Inc., Vancouver Airport Authority, and Victoria Airport Authority. The claim alleges that the airport authorities charged unlawful fees to airline employees and their family members who travelled using an employee travel pass. The ultimate goal of the proceeding is to seek certification of the claim as a class action advancing claims on behalf of airline employees and their family members. On March 26, 2019, Mr. Roy commenced a similar claim in the Federal Court. He anticipated that defendants might raise different jurisdictional challenges in each court and informed the defendants of this plan. In the British Columbia proceeding, he was concerned that some defendants might challenge the territorial jurisdiction of the Supreme Court of British Columbia, and in the Federal Court he was concerned that some defendants would challenge subject-matter jurisdiction. The non-British Columbia-based defendants in the British Columbia action brought a jurisdictional challenge. In the Federal Court, there was a subject-matter jurisdiction challenge. After the Federal Court decided another case that cast doubt on its subject-matter jurisdiction over Mr. Roy’s claim, the parties agreed on November 30, 2020 to a consent dismissal of the Federal Court action, without prejudice to Mr. Roy recommencing the claim before a provincial superior court. Mr. Roy then pursued the British Columbia claim in April 2021.

Applications before the Supreme Court of British Columbia

Ten months after Mr. Roy began pursuing the British Columbia action, the three British Columbia airport authorities (Prince George, Vancouver, and Victoria) gave notice that they would apply to strike the claim. They later advised that they would argue the claim should be struck because Mr. Roy was not a British Columbia resident, which they said was required by s. 2(1) of the CPA. In their notice of application, the appellants did not seek alternative relief requiring Mr. Roy to remove all references to a class proceeding in the notice of civil claim if their application to strike was dismissed, but they advanced this alternative position in written submissions before the chambers judge without amending the notice of application. In response, Benjamin Scott, a British Columbia resident and a member of the proposed class, contacted counsel for Mr. Roy and indicated his interest in joining the class action. He agreed to act as an additional plaintiff, and counsel for Mr. Roy and Mr. Scott brought an application to add Mr. Scott as a plaintiff. The chambers judge, who was also the case management judge, heard together the appellants’ application to strike the action and the application to add Mr. Scott as a plaintiff. The appellants’ key position was that the British Columbia action was a nullity because Mr. Roy did not meet the residency requirement in s. 2(1) of the CPA, and that the proceeding was an abuse of process. They opposed the addition of Mr. Scott as a plaintiff. The chambers judge found that the claim could survive as an individual claim brought by Mr. Roy, regardless of his standing to advance a class proceeding, and therefore it was not a nullity. The judge also held that Mr. Scott met the test under Rule 6-2(7)(c) of the Supreme Court Civil Rules to be added as a party, including that it was just and convenient to add him as a plaintiff. The judge concluded there was no abuse of process arising from Mr. Roy filing two substantially identical claims in two courts to protect class members’ claims from potential limitation expiry while jurisdictional challenges were resolved, and described this as a prudent course of action. The judge further found there was no abuse of process in Mr. Roy applying to have Mr. Scott added as a plaintiff to address Mr. Roy’s lack of standing to advance a class certification application.

Arguments on class proceeding references and s. 2 of the CPA

Although their notice of application did not seek that relief, the appellants argued in chambers that all references to the CPA and to a class proceeding should be removed from the notice of civil claim, limiting the case to an individual action. Their central position was that the CPA requires a resident of British Columbia to commence the claim and that the same person must apply for certification, based on a reading of ss. 2(1) and 2(2). They submitted that, because Mr. Roy was not a British Columbia resident, he could not proceed with an application for certification under s. 2(2), and that adding Mr. Scott as a plaintiff could not cure this problem because Mr. Scott had not “commenced” the proceeding within the meaning of s. 2(1). The appellants relied on MM Fund v. Excelsior Mining Corp., 2024 BCCA 163, submitting that it confirmed s. 2(1) restricts the ability to initiate a class proceeding to British Columbia residents. The chambers judge rejected this reading of MM Fund, noting that the case confirmed only that a British Columbia resident has standing to advance a class action in British Columbia and focused on whether a trust was a British Columbia resident. The judge held that MM Fund did not address a situation where there was an application to add a British Columbia resident as plaintiff. The judge characterized the appellants’ interpretation of ss. 2(1) and 2(2) as overly restrictive and inconsistent with the well-established approach of interpreting and applying the CPA in a generous fashion in light of its objectives of judicial economy, access to justice, and behaviour modification, as identified in Endean v. British Columbia, 2016 SCC 42. The judge also observed that, even if the appellants’ interpretation of the CPA were correct, the defect could be addressed by an order adding a British Columbia resident as plaintiff nunc pro tunc, with retroactive effect, and found it would be appropriate to grant such an order if necessary to comply with s. 2 of the CPA. Ultimately, the judge did not make the order nunc pro tunc because it was not considered necessary.

The court’s analysis of the Class Proceedings Act on appeal

On appeal, the appellants did not challenge the chambers judge’s findings that the action was neither a nullity nor an abuse of process, and did not challenge the conclusion that Mr. Scott should be added as a plaintiff. They narrowed their position to the argument that, once Mr. Scott was added as a plaintiff, all references to a class proceeding must be struck from the notice of civil claim. They submitted that, pursuant to s. 2(2), only the person who “commences a proceeding” under s. 2(1) may apply for certification, and that the person who originally files the claim is the only person who “commences” a proceeding within the meaning of s. 2(1). They maintained that the mandatory “must” in s. 2(2) required that this same person be the one to apply for certification, and that the only exception was s. 2(4), which permits certification of a person who is not a class member as representative plaintiff only if necessary to avoid a substantial injustice to the class. The court applied the principle that statutory words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and objects of the Act, citing authorities such as Rizzo & Rizzo Shoes Ltd. (Re), Bell ExpressVu Limited Partnership v. Rex, and Wang v. British Columbia (Securities Commission), and referred to s. 8 of the Interpretation Act, which requires a fair, large and liberal construction of statutes to best ensure attainment of their objects. The court held that s. 2(1) is permissive, allowing a resident of British Columbia who is a member of a class to commence a proceeding on behalf of that class, while ss. 2(2) and 2(3) are mandatory in that the plaintiff must apply for certification, must seek appointment as representative plaintiff, must give required notice, and must bring the certification application within the prescribed time or with leave. The court interpreted this “must” language as indicating that a plaintiff cannot merely start an action and label it as a class proceeding without taking the procedural steps to seek certification. The court rejected the appellants’ reading of s. 2(2) as requiring that the person applying for certification must be the same individual who originally commenced the proceeding. It noted that ss. 2(1) and 2(2) do not address what happens if a new plaintiff is added to a putative class proceeding, and that the phrase “commence a proceeding” is not defined and must be understood in the context of the CPA.

Interplay between the CPA, the Rules, and prior authorities

The court observed that the CPA as a whole clearly permits the addition or substitution of a plaintiff as representative plaintiff. It pointed to s. 12, which gives the court authority at any time to make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination, and to s. 40, which provides that the Supreme Court Civil Rules apply to class proceedings to the extent they are not in conflict with the CPA. The court noted that civil procedure under the Rules is generally flexible and forgiving, with opportunities to correct procedural missteps, and that the Rules permit the addition or substitution of a plaintiff under Rule 6-2(7). Citing Madadi v. Nichols, the court referred to factors relevant to adding a party, including the existence of a real issue, the connection between the existing claim and the party to be added, prejudice from delay, and limitation periods. The appellants identified no conflict between Rule 6-2(7) and the CPA. The court quoted Great Canadian Gaming Corporation v. British Columbia Lottery Corporation for the proposition that the Rules continue to apply to class proceedings and that their interpretation and application will be informed by the objectives of the CPA so that the two operate in harmony. It reiterated that the objectives of the CPA are judicial economy, access to justice, and behaviour modification, as set out in Western Canadian Shopping Centres Inc. v. Dutton, and quoted Endean for the proposition that class actions are intended to improve access to justice and that class action judges have broad and flexible procedural powers. The court also endorsed a passage from Bellefeuille v. Canadian Pacific Railway Ltd., as cited in Great Canadian Gaming, highlighting that the legislature intended civil actions to be managed efficiently and effectively, that form should not trump substance where procedural fairness can be maintained, and that the court should look carefully at any jurisdictional argument aimed at preventing access to the CPA. The court repeated that the CPA is a purely procedural statute, citing Sanis Health Inc. v. British Columbia. It referred to Sanis in describing s. 12 as conferring general supervisory jurisdiction from the moment a proposed class action begins and obliging the court to ensure class members’ interests are protected. Interpreting s. 12 together with the Rules and the CPA’s objectives, the court held that there is discretion to add or substitute a plaintiff before certification and to permit that plaintiff to apply for certification under s. 2(2). The court noted that the appellants could not identify a purpose for a complete statutory barrier to adding a British Columbia resident class member as plaintiff in order to take over a certification application, and that their position effectively assumed the CPA was rigid and inflexible, which the court found to be contrary to the authorities and ss. 12 and 40. The court also considered that the appellants’ interpretation would lead to consequences it described as absurd and frivolous, such as requiring abandonment of a class action whenever the original plaintiff could no longer continue as plaintiff for reasons such as death, illness, or discovery that the person was not a class member. It observed that the CPA permits non-British Columbia residents to be included in class actions in the province and that there was nothing to be gained by requiring abandonment of a class action simply because it was initially started by someone who did not meet the requirements for bringing a certification application but whose deficiency was later corrected. The court noted that the appellants’ position was contrary to Birrell v. Providence Health Care Society, in which the addition of plaintiffs was permitted after the original plaintiff discovered she was not a class member. It further pointed to s. 4 of the CPA, which provides that the court must certify a proceeding as a class proceeding on an application under s. 2 or 3 if certain requirements are met, including the existence of a representative plaintiff who meets criteria listed in s. 4(1)(e). The court emphasized that s. 4 does not require that the original filer of the notice of civil claim be the representative plaintiff. It referred again to Great Canadian Gaming, which interpreted “commence a proceeding” in s. 2(1) liberally and held that the CPA may be invoked when a notice of civil claim is first filed or when it is later amended to include reference to the CPA.

Outcome of the appeal and preliminary application

The court concluded that ss. 2(1) and 2(2) of the CPA do not preclude the addition of a plaintiff to an existing action to act as representative plaintiff and to bring an application for certification of the action as a class proceeding. In the context of the CPA, the court held that adding a new person as plaintiff, who intends to apply for certification, is to be interpreted as that person “commencing a proceeding” on behalf of class members for the purposes of ss. 2(1) and 2(2). The court therefore upheld the chambers judge’s rejection of the appellants’ argument and the refusal to order that the civil claim be amended to remove all references to a class proceeding. The court confirmed that Mr. Scott is not precluded from seeking certification of the action as a class action merely because there was an earlier plaintiff who filed the claim. The respondents brought a preliminary application in the Court of Appeal to quash the appeal on the basis that the relief now sought—striking out portions of the notice of civil claim—had not been sought in the notice of application in the Supreme Court. They also objected that the other defendants were not named as parties to the appeal and sought to have them added to the style of proceeding as respondents. The court dismissed the preliminary application. It held that both sides had notice of the alternative relief in the court below, made submissions on it, and did not object to the judge considering it, so there was no procedural unfairness. Regarding the request to add other respondents, the court noted that the other named defendants had notice of the appeal, were represented by the appellants’ counsel, and did not wish to attorn to the jurisdiction of the Court of Appeal because they had outstanding jurisdictional challenges in the Supreme Court. The court saw no basis to add them to the style of cause on the appeal. In its disposition, the court stated that it dismissed the appeal and dismissed the preliminary application on October 27, 2025. The written reasons do not refer to any award of damages, and no specific amount of costs or damages is identified in the text.