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VOL. 79 PART 4 JULY 2021
class proceedings legislation.26 In exercising this jurisdiction, courts carefully
scrutinize a representative plaintiff’s reasons for discontinuing a proposed
class action, especially where such discontinuance is sought for the
purpose of settling the representative plaintiff’s own individual claim.27
One source of prejudice to putative class members that may arise in the
context of settlement comes from the operation of s. 39 of the CPA (and parallel
provisions in other provinces), which suspends any limitation period applicable
to a cause of action brought on behalf of putative class members from
the date the proposed class proceeding is commenced until, inter alia, the proceeding
is dismissed without an adjudication on the merits or is otherwise settled,
discontinued or abandoned. In Canadian Imperial Bank of Commerce v.
Green, the Supreme Court of Canada described the purpose of a similar provision
in Ontario’s Class Proceedings Act28 as being to protect putative class members
from the expiry of limitation periods before the viability of a proposed
class action is established, thereby negating the need for each class member
to commence an individual action in order to preserve their rights.29
The settlement of an uncertified class proceeding with a representative
plaintiff alone that includes a standard consent dismissal order would end
the tolling of applicable limitation periods under s. 39 of the CPA and may
create a serious risk of prejudice to the claims of putative class members.
Often on motions to approve the discontinuance of a class action, courts
will order that notice of the proposed discontinuance be provided to putative
class members so that they may take steps to prevent prejudice arising
to them as a result of the discontinuance. In Chen v. Memorial University of
Newfoundland and Labrador, the Supreme Court of Newfoundland and
Labrador underscored the significance of providing notice to absent putative
class members of a proposed discontinuance as a means of ameliorating
prejudice arising from the recommencement of the running of
limitation periods.30
The court in Chen ordered that notice of the motion for discontinuance
of an uncertified class proceeding be given to putative class members under
ss. 35(1) and (5) of that province’s Class Actions Act.31 Yet, those provisions—
like their counterparts in British Columbia—apply only to certified class proceedings,
32 demonstrating that in the absence of express provisions
requiring court approval of settlements, courts may take steps to protect the
rights and interests of absent putative class members.
COUNSEL’S DUTIES TO PUTATIVE CLASS MEMBERS
Jurisprudence demonstrates that counsel owe certain duties to putative
class members before certification that are especially engaged in the con-