Farris Partners, Rob Anderson, K.C. and Nicholas Hooge, recently represented N&C Transportation Ltd. as the representative plaintiff in a class proceeding against Navistar International Corporation at the BC Court of Appeal.  This was the first time that the Court of Appeal had occasion to consider the new provisions of the Class Proceedings Act which allow for a national opt-in class action to be recertified as a multi-jurisdictional opt-out action. On Appeal, N&C succeeded in having Navistar’s challenge of a Supreme Court order certifying the class action as a multi-jurisdictional proceeding dismissed.

Navistar argued that the judge erred in assessing the necessary objectives and factors, and improperly weighed the benefits of a multi-jurisdictional proceeding in the circumstances. It further argued that the judge was bound by comity pending the resolution of proposed settlements in other provinces, and that the certification judge improperly favoured his own jurisdiction.

Farris lawyers were successful in establishing that the decision in question was discretionary, and that the appropriate weight to give to each consideration found in the statutory provision is for the judge hearing the application to decide. The Court noted that ‘comity’ had no role to play as there was no existing decision from another Canadian court that was inconsistent with what the judge proposed. Rather, the existence of proceedings in other provinces is inherent in an application to certify a multi-jurisdictional action. The Court further cautioned that Navistar’s submission that a certification judge be required to adjourn a multi-jurisdictional certification application if a settlement has purportedly been reached, but not yet considered, in another province, has the prospect of creating real mischief. Ultimately, the Court found that none of the issues raised by the appellants had any merit.