2.6: Representative actions
3.75: Adding, removing or substituting parties to originating application

Case Summary

The Applicant sought an Order to (a) add another party (the “New Party”) as an applicant to an Action, and (b) to have the New Party and the Applicant be designated as representatives for other parties with a common interest in the claim, pursuant to Rule 2.6.

Justice Gates reviewed Rule 3.75 as the rule governing the adding of a party or person to an action commenced by Originating Application. His Lordship satisfied himself that the New Party consented to being added to the Originating Application and also consented to acting in a representative capacity for other individuals with a common interest. However, an issue arose as to whether the Applicant should be permitted to commence a Representative Action in the circumstances.

The Court considered, pursuant to Rule 2.6, that representative proceedings are governed by the Class Proceedings Act, SA 2003, c C-16.5 (“CPA”). Despite a dearth of case law considering Rule 2.6 since the introduction of the CPA, the Court relied on Paron v Alberta (Minister of Environment Protection), 2004 ABQB 760, which acknowledged that the issue was not governed by the CPA, but the Court could, nonetheless, rely on its inherent power to adopt the certification process contemplated by CPA.

Similarly, the Court relied upon Champagne v Sidorsky, 2012 ABQB 522 for the proposition that Rule 2.6(1) continued to have an independent existence over and above the provisions of the CPA. As such, the requirements for a representative action to be rectified under Rule 2.6 were the four requirements of a Class Action, namely that: (i) the class must be capable of clear and definite definition; (ii) the principal issues of fact and law must be the same; (iii) success for one of the plaintiffs will mean success for all; (iv) no individual assessment of the claims of individual plaintiffs need to be made.

In this instance, the Applicants advanced no argument to show that it met the requirements of a Class Action under the CPA or the requirements of a representative action under Rule 2.6. The Court add the New Party as a party to the Action, but dismissed the Application to permit the New Party or the Applicant to participate in a representative capacity on behalf of others.

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