Time for Change: Advancing the Objectives of Class Actions by Removing the “Residency Requirement” from British Columbia’s Class Proceedings Act

This paper provides an examination of the “residency requirement” found in section 2 of the British Columbia Class Proceedings Act BCCPA. This requirement prohibits non-resident claimants from commencing class proceedings in British Columbia. Drawing on the decision in Nevsun Resources Ltd v Araya Nevsun, this paper elucidates how the residency requirement is incongruent with the objectives of class proceedings legislation: judicial economy, access to justice, and behaviour modification. This conclusion, which is supported by a close review of the decision of the Supreme Court of British Columbia in Nevsun, is problematic, given the proliferation of transnational tort litigation in recent years. This trend is characterized by claimants from foreign jurisdictions seeking a remedy for gross human rights violations and similar harms allegedly perpetrated by multinational corporations headquartered in Canada and other predominantly capital exporting countries. The factual matrices of these claims often lend themselves to potential class proceedings. As these claims are likely to continue, including in British Columbia, this paper argues that the BCCPA should be amended to allow classes consisting entirely of foreign claimants to commence a class proceeding. This would benefit the parties, particularly plaintiffs with little resources, the courts, and the interests of justice more broadly. This paper concludes by recommending that the residency requirement be removed to conform with class proceedings legislation in other Canadian provinces, such as Alberta, Ontario, and Nova Scotia. In the alternative, an exception should, at least, be made in cases where denying certification to claimants simply because they are non-residents would result in a “substantial injustice.” This paper can therefore inform lawmakers in British Columbia and other provinces that currently maintain a residency requirement in their class proceedings legislation, including Saskatchewan and Manitoba.