Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 SCR 534

Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46

Bennett Jones Verchere, Garnet Schulhauser,

Arthur Andersen & Co., Ernst & Young,

Alan Lundell, The Royal Trust Company,

William R. MacNeill, R. Byron Henderson,

C. Michael Ryer, Gary L. Billingsley,

Peter K. Gummer, James G. Engdahl,

Jon R. MacNeill                                              Appellants/Respondents on cross-appeal

v.

Western Canadian Shopping Centres Inc.

and Muh-Min Lin and Hoi-Wah Wu,

representatives of all holders of Class “A”,

Class “E” and Class “F” Debentures issued

by Western Canadian Shopping

Centres Inc.                                                     Respondents/Appellants on cross-appeal

Indexed as:  Western Canadian Shopping Centres Inc. v. Dutton

Neutral citation:  2001 SCC 46.

File No.:  27138.

Hearing and judgment:  December 13, 2000.

Reasons delivered:  July 13, 2001.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for alberta

Practice – Class actions – Plaintiffs suing defendants for breach of fiduciary duties and mismanagement of funds – Defendants applying for order to strike plaintiffs’ claim to sue in representative capacity -- Whether requirements for class action met – If so, whether class action should be allowed – Whether defendants entitled to examination and discovery of each class member -- Alberta Rules of Court, Alta. Reg. 390/68, Rule 42.

L and W, together with 229 other investors, became participants in the federal government’s Business Immigration Program by purchasing debentures in WCSC, which was incorporated by D, its sole shareholder, for the purpose of helping investor-class immigrants qualify as permanent residents in Canada.  WCSC solicited funds through two offerings to invest in income-producing properties.  After the investors’ funds were deposited, WCSC purchased from CRI, for $5,550,000, the rights to a Crown surface lease and also agreed to commit a further $16.5 million for surface improvements.  To finance WCSC’s obligations to CRI, D directed that the Series A debentures be issued in an aggregate principal amount of $22,050,000 to some of the investors.  D advanced more funds to CRI and corresponding debentures were issued, in particular the Series E and F debentures.  Eventually, the debentures were pooled.  When CRI announced that it could not pay the interest due on the debentures, L and W, the representative plaintiffs, commenced a class action complaining that D and various affiliates and advisors of WCSC breached fiduciary duties to the investors by mismanaging their funds.  The defendants applied to the Court of Queen’s Bench for a declaration and order striking that portion of the claim in which the individual plaintiffs purport, pursuant to Rule 42 of the Alberta Rules of Court, to represent a class of 231 investors.  The chambers judge denied the application.  The majority of the Court of Appeal upheld that decision but granted the defendants the right to discovery from each of the 231 plaintiffs.  The defendants appealed to this Court, and the plaintiffs cross-appealed taking issue with the Court of Appeal’s allowance of individualized discovery from each class member.

Held:  The appeal should be dismissed and the cross-appeal allowed.

In Alberta, class-action practice is governed by Rule 42 of the Alberta Rules of Court but, in the absence of  comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them.  Class actions should be allowed to proceed under Rule 42 where the following conditions are met:  (1) the class is capable of clear definition; (2) there are issues of law or fact common to all class members; (3) success for one class member means success for all; and (4) the proposed representative adequately represents the interests of the class.  If these conditions are met the court must also be satisfied, in the exercise of its discretion, that there are no countervailing considerations that outweigh the benefits of allowing the class action to proceed.  The court should take into account the benefits the class action offers in the circumstances of the case as well as any unfairness that class proceedings may cause.  In the end, the court must strike a balance between efficiency and fairness.  The need to strike a balance between efficiency and fairness belies the suggestion that a class action should be struck only where the deficiency is “plain and obvious”.  On procedural matters, all potential class members should be informed of the existence of the suit, of the common issues that the suit seeks to resolve, and of the right of each class member to opt out.  This should be done before any decision is made that purports to prejudice or otherwise affect the interests of class members.  The court also retains discretion to determine how the individual issues should be addressed, once common issues have been resolved.  In the absence of comprehensive class-action legislation, courts must address procedural complexities on a case-by-case basis in a flexible and liberal manner, seeking a balance between efficiency and fairness.

In this case, the basic conditions for a class action are met and efficiency and fairness favour permitting it to proceed.  The defendants’ contentions against the suit were unpersuasive.  While differences exist among investors, the fact remains that the investors raise essentially the same claims requiring resolution of the same facts.  If material differences emerge, the court can deal with them when the time comes.  Further, a class action should not be foreclosed on the ground that there is uncertainty as to the resolution of issues common to all class members.  If it is determined that the investors must show individual reliance to establish breach of fiduciary duty, the court may then consider whether the class action should continue.  The same applies to the contention that different defences will be raised with respect to different class members.  Simply asserting this possibility does not negate a class action.  If and when different defences are asserted, the court may solve the problem or withdraw leave to proceed as a class.

Finally, to allow individualized discovery at this stage of the proceedings would be premature.  The defendants should be allowed to examine the representative plaintiffs as of right but examination of other class members should be available only by order of the court, upon the defendants showing reasonable necessity.

Cases Cited

Distinguished:  General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72; referred to:  353850 Alberta Ltd. v. Horne & Pitfield Foods Ltd., [1989] A.J. No. 652 (QL); Shaw v. Real Estate Board of Greater Vancouver (1972), 29 D.L.R. (3d) 774; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Korte v. Deloitte, Haskins & Sells (1993), 8 Alta. L.R. (3d) 337; Oregon Jack Creek Indian Band v. Canadian National Railway Co., [1989] 2 S.C.R. 1069; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Chancey v. May (1722), Prec. Ch. 592, 24 E.R. 265; City of London v. Richmond (1701), 2 Vern. 421, 23 E.R. 870; Wallworth v. Holt (1841), 4 My. & Cr. 619, 41 E.R. 238; Duke of Bedford v. Ellis, [1901] A.C. 1; Taff Vale Railway Co. v. Amalgamated Society of Railway Servants, [1901] A.C. 426; Markt & Co. v. Knight Steamship Co., [1910] 2 K.B. 1021; Bell v. Wood, [1927] 1 W.W.R. 580; Langley v. North West Water Authority, [1991] 3 All E.R. 610, leave denied [1991] 1 W.L.R. 711n; Newfoundland Association of Public Employees v. Newfoundland (1995), 132 Nfld. & P.E.I.R. 205; Ranjoy Sales and Leasing Ltd. v. Deloitte, Haskins and Sells, [1984] 4 W.W.R. 706; International Capital Corp. v. Schafer (1995), 130 Sask. R. 23; Guarantee Co. of North America v. Caisse populaire de Shippagan Ltée (1988), 86 N.B.R. (2d) 342; Lee v. OCCO Developments Ltd. (1994), 148 N.B.R. (2d) 321; Van Audenhove v. Nova Scotia (Attorney General) (1994), 134 N.S.R. (2d) 294; Horne v. Canada (Attorney General) (1995), 129 Nfld. & P.E.I.R. 109; Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172; Drummond-Jackson v. British Medical Association, [1970] 1 All E.R. 1094.

Statutes and Regulations Cited

Alberta Rules of Court, Alta. Reg. 390/68, rr. 42, 129, 187, 201.

Civil Procedure Rules 1998 (U.K.), SI 1998/3132, rr. 19.10-19.15.

Class Proceedings Act, R.S.B.C. 1996, c. 50, ss. 4(1), 7, 27.

Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5(1), 6, 25.

Code of Civil Procedure, R.S.Q., c. C-25, Book IX, arts. 1003, 1039.

Federal Rules of Civil Procedure, 28 U.S.C.A. § 23.

Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, Sch., r. 10.

Authors Cited

Alberta.  Alberta Rules of Court Binder.  Practice Note on the Very Long Trial. Practice Note No. 7, September 1, 1995.

Alberta Law Reform Institute.  Final Report No. 85.  Class Actions.  Edmonton:  The Institute, 2000.

Bankier, Jennifer K.  “Class Actions for Monetary Relief in Canada:  Formalism or Function?” (1984), 4 Windsor Y.B. Access Just. 229.

Bispham, George Tucker.  The Principles of Equity:  A Treatise on the System of Justice Administered in Courts of Chancery, 9th ed. By Joseph D. McCoy.  New York:  Banks Law Publishing, 1916.

Branch, Ward K.  Class Actions in Canada.  Vancouver:  Western Legal Publications, 1998.

Calvert, Frederic.  A Treatise Upon the Law Respecting Parties to Suits in Equity, 2nd ed.  London:  W. Benning, 1847.

Chafee, Zechariah, Jr.  Some Problems of Equity.  Ann Arbor:  University of Michigan Law School, 1950.

“Developments in the Law – The Paths of Civil Litigation” (2000), 113 Harv. L. Rev. 1806.

Eizenga, Michael A., Michael J. Peerless and Charles M. Wright.  Class Actions Law and Practice.  Toronto:  Butterworths, 1999.

Friedenthal, Jack H., Mary Kay Kane and Arthur R. Miller.  Civil Procedure, 2nd ed. St. Paul, Minn.:  West Publishing Co., 1993.

Kazanjian, John A.  “Class Actions in Canada” (1973), 11 Osgoode Hall L.J. 397.

Manitoba.  Law Reform Commission.  Report #100.  Class Proceedings.  Winnipeg:  The Commission, 1999.

Ontario.  Law Reform Commission.  Report on Class Actions.  Ontario:  Ministry of the Attorney General, 1982.

Roberts, Thomas A.  The Principles of Equity, as Administered in the Supreme Court of Judicature and Other Courts of Equitable Jurisdiction, 3rd ed.  London: Butterworths, 1877.

Rogers, Ruth.  “A Uniform Class Actions Statute” in Uniform Law Conference of Canada.  Proceedings of the Seventy-Seventh Annual Meeting, Appendix O. Ottawa:  The Conference, 1995.

Stevenson, William Alexander, and Jean E. Côté.  Civil Procedure Guide, 1996.  Edmonton:  Juriliber, 1996.

Story, Joseph.  Commentaries on Equity Pleadings and the Incidents Thereof, According to the Practice of the Courts of Equity of England and America, 10th ed.  by John M. Gould.  Boston:  Little, Brown, 1892.

Wright, Charles Alan, Arthur R. Miller and Mary Kay Kane.  Federal Practice and Procedure, 2nd ed.  St. Paul, Minn.:  West Publishing Co., 1986.

Yeazell, Stephen C.  “Group Litigation and Social Context:  Toward a History of the Class Action” (1977), 77 Colum. L. Rev. 866.

APPEAL and CROSS-APPEAL from a judgment of the Alberta Court of Appeal (1998), 73 Alta. L.R. (3d) 227, 228 A.R. 188, 188 W.A.C. 188, 30 C.P.C. (4th) 1, [1998] A.J. No. 1364 (QL), 1998 ABCA 392, dismissing an appeal from a decision of the Court of Queen’s Bench (1996), 41 Alta. L.R. (3d) 412, 191 A.R. 265, 3 C.P.C. (4th) 329, [1996] A.J. No. 1165 (QL).  Appeal dismissed and cross-appeal allowed.

Barry R. Crump, Brian Beck and David C. Bishop, for the appellants/respondents on cross-appeal.

Hervé H. Durocher and Eugene J. Erler, for the respondents/appellants on cross-appeal.

The judgment of the Court was delivered by

1                                   The Chief Justice -- This appeal requires us to decide when a class action may be brought.  While the class action has existed in one form or another for hundreds of years, its importance has increased of late.  Particularly in complicated cases implicating the interests of many people, the class action may provide the best means of fair and efficient resolution.  Yet absent legislative direction, there remains considerable uncertainty as to the conditions under which a court should permit a class action to be maintained.

2                                   The claimants wanted to immigrate to Canada.  To qualify, they invested money in Western Canadian Shopping Centres Inc. (“WCSC”), under the Canadian government’s Business Immigration Program.  They lost money and brought a class action.  The defendants (appellants) claim the class action is inappropriate and ask the Court to strike it out.  For the following reasons, I conclude that the claimants  may proceed as a class.  

I.     Facts

3                                   The representative plaintiffs Muh-Min Lin and Hoi-Wah Wu, together with 229 other investors, became participants in the government’s Business Immigration Program of Employment and Immigration Canada by purchasing debentures in WCSC.  WCSC was incorporated by Joseph Dutton, its sole shareholder, for the purpose of “facilitat[ing] the qualification of the Investors, their spouses, and their never-married children as Canadian permanent residents.”  

4                                   WCSC solicited funds through two offerings “to invest in land located in the Province of Saskatchewan for the purpose of developing commercial, non-residential, income-producing properties”.  The offering memoranda provided that the subscription proceeds would be deposited with an escrow agent, later designated as The Royal Trust Company (“Royal Trust”), and would be released to WCSC upon conditions, subsequently amended.

5                                   The dispute arises from events after the investors’ funds had been deposited with Royal Trust.  In May 1990, WCSC entered into a Purchase and Development Agreement (“PDA”) with Claude Resources Inc. (“Claude”)  under which WCSC purchased from Claude, for $5,550,000, the rights to a Crown surface lease adjacent to Claude’s “Seabee” gold deposits in northern Saskatchewan.  WCSC also agreed to commit a further $16.5 million for surface improvements and for the construction of a gold mill, which would be owned by WCSC.  A lease agreement executed in tandem with the PDA leased the not-yet-constructed gold mill and related facilities, together with the surface lands, back to Claude.  The payments required of Claude under that lease agreement matched the semi-annual interest payments required of WCSC with respect to the investors.

6                                   To finance WCSC’s obligations under the PDA with Claude, Dutton directed Royal Trust to issue debentures in an aggregate principal amount of $22,050,000 to a subset of the investors who had subscribed by that point.  Royal Trust did so by issuing “Series A” debentures to 142 investors.  After the debentures were issued, WCSC distributed an update letter to its investors, describing the investment in Claude.

7                                   In a separate series of transactions executed around the same time, Dutton and Claude entered into an agreement by which (1) Dutton effectively conveyed  to Claude 49 percent of his shares in WCSC; (2) Claude paid Dutton $1.6 million in cash; (3) Claude advanced Dutton a $1.6 million non-recourse loan; (4) Dutton entered into an employment contract with Claude for a salary of $50,000 per year; and (5) Claude and Dutton’s management company, J.M.D. Management Ltd., entered into a management contract for $200,000 per year.  It appears that WCSC did not distribute an update letter to its investors describing this series of transactions.

8                                   Over the next months, Dutton advanced more funds to Claude and directed Royal Trust to issue corresponding debentures.  Of particular relevance to the instant dispute are the Series E debentures issued in December 1990 (aggregate principal of $2.56 million), and the Series F debentures issued in May 1991 (aggregate principal of $9.45 million).  When the Series E debentures were issued, the Series A and E debentures were pooled, so that investors in those series became entitled to a pro rata claim on the total security pledged with respect to the two series.  When the Series F debentures were issued, the security for that series was pooled with the security that had been pledged with respect to the Series A and E debentures.  WCSC apparently distributed investor update letters after the issuance of the Series E and F debentures, just as it had done after the issuance of the Series A debentures.

9                                   In December 1991, Claude announced that it could not pay the interest due on the Series A, E, and F debentures and Muh-Min Lin and Hoi-Wah Wu commenced this action. The gravamen of the complaint is that Dutton and various affiliates and advisors of WCSC breached fiduciary duties to the investors by mismanaging or misdirecting their funds.  

II.     Statutory Provisions

10                               Alberta Rules of Court, Alta. Reg. 390/68

42   Where numerous persons have a common interest in the subject of an intended action, one or more of those persons may sue or be sued or may be authorized by the Court to defend on behalf of or for the benefit of all.

129(1)  The court may at any stage of the proceedings order to be struck  out or amended any pleading in the action, on the ground that

(a)   it discloses no cause of action or defence, as the case may be, or

(b)   it is scandalous, frivolous or vexatious, or

(c)   it may prejudice, embarrass or delay the fair trial of the action, or

(d)   it is otherwise an abuse of the process of the court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly.

(2)   No evidence shall be admissible on an application under  clause (a) of subrule (1).

(3)   This Rule, so far as applicable, applies to an originating notice and a petition.

187  A person for whose benefit an action is prosecuted or defended or the assignor of a chose in action upon which the action is brought, shall be regarded as a party thereto for the purposes of discovery of documents.

201  A member of a firm which is a party and a person for whose benefit an action is prosecuted or defended shall be regarded as a party for the purposes of examination.

III.     Decisions

11                               The appellants applied to the Court of Queen’s Bench of Alberta (1996), 41 Alta. L.R. (3d) 412 for a declaration and order striking that portion of the Amended Statement of Claim in which the individual plaintiffs purport, pursuant to Rule 42 of the Alberta Rules of Court, to represent a class of 231 investors.  The chambers judge identified four issues: (1) whether the court had the power under Rule 42 to strike the investors’ claim to sue in a representative capacity; (2) whether the court was restricted to considering only the Amended Statement of Claim filed; (3) the standard of proof required to compel the court to exercise its discretion to strike the representative claim; and (4) whether, in this case, this standard was met.

12                               On the first issue, the chambers judge relied on the decision of Master Funduk in 353850 Alberta Ltd. v. Horne & Pitfield Foods Ltd., [1989] A.J. No. 652 (QL), to conclude that the court has the power, under Rule 42, to strike a claim made by plaintiffs to sue in a representative capacity.

13                               On the second issue, the chambers judge held that the court need not limit its inquiry to the pleadings, relying on 353850 Alberta, supra, and on the decision of the British Columbia Supreme Court in Shaw v. Real Estate Board of Greater Vancouver (1972), 29 D.L.R. (3d) 774.  He concluded, however, that resolution of the case before him did not require resort to the affidavit evidence.

14                               On the third issue, the chambers judge concluded that the court should strike a representative claim under Rule 42 only if it is “entirely clear” or “beyond doubt” or “plain and obvious” that the claim is deficient – the standard applied to applications to strike pleadings for disclosing no reasonable claim: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

15                               On the final issue, the chambers judge, applying the “plain and obvious” rule, concluded that the Amended Statement of Claim was not deficient under Rule 42 and met the requirements set out in Korte v. Deloitte, Haskins & Sells (1993), 8 Alta. L.R. (3d) 337 (C.A.): (1) that the class be capable of clear and definite definition; (2) that the principal issues of law and fact be the same; (3) that one plaintiff’s success would necessarily mean success for all members of the plaintiff class; and (4) that the resolution of the dispute not require any individual assessment of the claims of individual class members.  However, he left the matter open to review by the trial judge.

16                               The Alberta Court of Appeal, per Russell J.A. (for the majority), dismissed the appeal, Picard J.A., dissenting: (1998), 73 Alta. L.R. (3d) 227.  The majority rejected the argument that the chambers judge should have conclusively resolved the Rule 42 issue rather than left it open to the trial judge, citing Oregon Jack Creek Indian Band v. Canadian National Railway Co., [1989] 2 S.C.R. 1069, in which this Court left to the trial judge the issue of whether the plaintiffs were authorized to sue on behalf of a broader class.  The majority also rejected the argument that the investors must show individual reliance to succeed.  However, it granted the defendants the right to discovery from each of the 231 plaintiffs on the grounds that Rule 201, read with Rule 187, allows discovery from any person for whose benefit an action is prosecuted or defended and that the defendants should not be barred from developing an argument based on actual reliance merely because it was speculative.

17                               Picard J.A., would have allowed the appeal.  In her view, the Chambers judge erred in deferring the matter to the trial judge because, unlike Oregon Jack Creek, the case was narrow and “a great deal of relevant evidence was available to the court to allow it to make a decision” (p. 235).  The need to show individual reliance was only one of many problems that the investors would face if allowed to proceed as a class.  Citing this Court’s decisions in Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, and Hodgkinson v. Simms, [1994] 3 S.C.R. 377, she concluded that “[t]he extent of fiduciary duties in a particular case requires a meticulous examination of the facts, particularly of any contract between the parties” (p. 237).  She concluded that “[t]his responsibility of proof by the [investors] cannot possibly be met by a representative action nor by giving a right of discovery of the 229 other parties to the action” (p. 237).

IV.  Issues

18                               1.    Did the courts below apply the proper standard in determining whether the investors had satisfied the requirements for a class action under Rule 42?

2.                                 Did the courts below err in denying defendants’ motion to strike under Rule 42?

3.                                 If the class action is allowed, should the defendants have the right to full oral and documentary discovery of all class members?

V.  Analysis

A.   The History and Functions of Class Actions                               

19                               The class action originated in the English courts of equity in the late seventeenth and early eighteenth centuries.  The courts of law focussed on individual questions between the plaintiff and the defendant.   The courts of equity, by contrast,  applied a rule of compulsory joinder, requiring all those interested in the subject matter of the dispute to be made parties.  The aim of the courts of equity was to render “complete justice” – that is, to “arrang[e] all the rights, which the decision immediately affects”: F. Calvert, A Treatise Upon the Law Respecting Parties to Suits in Equity (2nd ed. 1847), at p. 3; see also C. A. Wright, A. R. Miller and M. K. Kane, Federal Practice and Procedure (2nd ed. 1986), at § 1751; J. Story, Equity Pleadings (10th ed. 1892), at  § 76a.  The compulsory-joinder rule “allowed the Court to examine every facet of the dispute and thereby ensure that no one was adversely affected by its decision without first having had an opportunity to be heard”:  J. A. Kazanjian, “Class Actions in Canada” (1973), 11 Osgoode Hall L.J. 397, at p. 400.  The rule possessed the additional advantage of preventing a multiplicity of duplicative proceedings. 

20                               The compulsory-joinder rule eventually proved inadequate.  Applied to conflicts between tenants and manorial lords or between parsons and parishioners, it closed the door to the courts where interested parties in such cases were too numerous to be joined.  The courts of equity responded by relaxing the compulsory-joinder rule where strict adherence would work injustice.  The result was the representative action.  For example, in Chancey v. May (1722), Prec. Ch. 592, 24 E.R. 265, members of a partnership were permitted to sue on behalf of themselves and some 800 other partners for misapplication and embezzlement of funds by the partnership’s former treasurer and manager.  The court allowed the action because “it was in behalf of themselves, and all others the proprietors of the same undertaking, except the defendants, and so all the rest were in effect parties,” and because “it would be impracticable to make them all parties by name, and there would be continual abatements by death and otherwise, and no coming at justice, if all were to be made parties” (p. 265); see also Kazanjian, supra, at p. 401; G. T. Bispham, The Principles of Equity (9th ed. 1916), at para. 415; S. C. Yeazell, “Group Litigation and Social Context: Toward a History of the Class Action” (1977), 77 Colum. L. Rev. 866, at pp. 867 and 872; J. K. Bankier, “Class Actions for Monetary Relief in Canada: Formalism or Function?” (1984), 4 Windsor Y.B. Access Just. 229, at p. 236. 

21                               The representative or class action proved useful in pre-industrial English commercial litigation.  The modern limited-liability company had yet to develop,  and collectives of business people had no independent legal existence.  Satisfying the compulsory-joinder rule would have required a complainant to bring before the court each member of the collective.  The representative action provided the solution to this difficulty: see Kazanjian, supra, at p. 401; Yeazell, supra, at p. 867; City of London v. Richmond (1701), 2 Vern. 421, 23 E.R. 870 (allowing the plaintiff to sue trustees for rent owed, though the beneficiaries of the trust were not joined).

22                               The class action required a common interest between the class members.  Many of the early representative actions were brought in the form of “bills of peace”, which could be maintained where the interested individuals were numerous, all members of the group possessed a common interest in the question to be adjudicated, and the representatives could be expected fairly to advocate the interests of all members of the group: see Wright, Miller and Kane, supra, at § 1751; Z. Chafee, Some Problems of Equity (1950), at p. 201, T. A. Roberts, The Principles of Equity (3rd ed. 1877), at pp. 389-92; Bispham, supra, at para. 417.

23                               The courts of equity applied a liberal and flexible approach to whether a class action could proceed.  They “continually sought a proper balance between the interests of fairness and efficiency”: Kazanjian, supra, at p. 411.  As stated in Wallworth v. Holt (1841), 4 My. & Cr. 619, 41 E.R. 238, at p. 244, “it [is] the duty of this Court to adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules, established under different circumstances, to decline to administer justice, and to enforce rights for which there is no other remedy”.

24                               This flexible and generous approach to class actions prevailed until the fusion of law and equity under the Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, and the adoption of Rule 10 of the Rules of Procedure:

10.  Where there are numerous parties having the same interest in one action, one or more of such parties may sue or be sued, or may be authorised by the Court to defend in such action, on behalf or for the benefit of all parties so interested.

While early cases under the new rules maintained a liberal approach to class actions (see, e.g., Duke of Bedford v. Ellis, [1901] A.C. 1 (H.L.); Taff Vale Railway Co. v. Amalgamated Society of Railway Servants, [1901] A.C. 426 (H.L.)), later cases sometimes took a restrictive approach (see, e.g., Markt & Co. v. Knight Steamship Co.,  [1910] 2 K.B. 1021 (C.A.)). This, combined with the widespread use of limited-liability companies, resulted in fewer class actions being brought. 

25                               The class action did not forever languish, however.  Conditions emerged in the latter part of the twentieth century that once again invoked its utility.  Mass production and consumption revived the problem that had motivated the development of the class action in the eighteenth century – the problem of many suitors with the same grievance.  As in the eighteenth century, insistence on individual representation would often have precluded effective litigation.  And, as in the eighteenth century, the class action provided the solution. 

26                               The class action plays an important role in today’s world.  The rise of mass production, the diversification of corporate ownership, the advent of the mega-corporation, and the recognition of environmental wrongs have all contributed to its growth.  A faulty product may be sold to numerous consumers.  Corporate mismanagement may bring loss to a large number of shareholders.  Discriminatory policies may affect entire categories of employees.  Environmental pollution may have consequences for citizens all over the country.   Conflicts like these pit a large group of complainants against the alleged wrongdoer.  Sometimes, the complainants are identically situated vis-à-vis the defendants.  In other cases, an important aspect of their claim is common to all complainants.  The class action offers a means of efficiently resolving such disputes in a manner that is fair to all parties.

27                               Class actions offer three important advantages over a multiplicity of individual suits.   First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis.  The efficiencies thus generated free judicial resources that can be directed at resolving other conflicts, and can also reduce the costs of litigation both for plaintiffs (who can share litigation costs) and for defendants (who need litigate the disputed issue only once, rather than numerous times): see W. K. Branch, Class Actions in Canada (1998), at para. 3.30; M. A. Eizenga, M. J. Peerless and C. M. Wright, Class Actions Law and Practice (1999), at §1.6; Bankier, supra, at pp. 230-31; Ontario Law Reform Commission, Report on Class Actions (1982), at pp. 118-19.

28                               Second, by allowing fixed litigation costs to be divided over a large number of plaintiffs, class actions improve access to justice by making economical the prosecution of claims that would otherwise be too costly to prosecute individually.  Without class actions, the doors of justice remain closed to some plaintiffs, however strong their legal claims.   Sharing costs ensures that injuries are not left unremedied: see Branch, supra, at para. 3.40; Eizenga, Peerless and Wright, supra, at §1.7; Bankier, supra, at pp. 231-32; Ontario Law Reform Commission, supra, at pp. 119-22.

29                               Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers do not ignore their obligations to the public.  Without class actions, those who cause widespread but individually minimal harm might not take into account the full costs of their conduct, because for any one plaintiff the expense of bringing suit would far exceed the likely recovery.  Cost-sharing decreases the expense of pursuing legal recourse and accordingly deters potential defendants who might otherwise assume that minor wrongs would not result in litigation: see “Developments in the Law – The Paths of Civil Litigation: IV. Class Action Reform: An Assessment of Recent Judicial Decisions and Legislative Initiatives” (2000), 113 Harv. L. Rev. 1806, at pp. 1809-10; see Branch, supra, at para. 3.50; Eizenga, Peerless and Wright, supra, at §1.8; Bankier, supra, at p. 232; Ontario Law Reform Commission, supra, at pp. 11 and 140-46.

B.     The Test for Class Actions

30                               In recognition of the modern importance of representative litigation, many jurisdictions have enacted comprehensive class action legislation.  In the United States, Federal Rules of Civil Procedure, 28 U.S.C.A. § 23 (introduced in 1938 and substantially amended in 1966) addressed aspects of class action practice, including certification of litigant classes, notice, and settlement.  The English procedural rules of 1999 include detailed provisions governing “Group Litigation”:  United Kingdom, Civil Procedure Rules 1998, SI 1998/3132, rr. 19.10-19.15.  And in Canada, the provinces of British Columbia, Ontario, and Quebec have enacted comprehensive statutory schemes to govern class action practice:  see British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50; Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6; Quebec Code of Civil Procedure, R.S.Q., c. C-25, Book IX.  Yet other Canadian provinces, including Alberta and Manitoba, are considering enacting such legislation: see Manitoba Law Reform Commission, Report #100, Class Proceedings (January 1999); Alberta Law Reform Institute, Final Report No. 85, Class Actions (December 2000); see also R. Rogers, “A Uniform Class Actions Statute”, Appendix O to the Proceedings of the 1995 Meeting of The Uniform Law Conference of Canada.

31                               Absent comprehensive codes of class action procedure, provincial rules based on Rule 10, Schedule, of the English Supreme Court of Judicature Act, 1873 govern.  This is the case in Alberta, where class action practice is governed by Rule 42 of the Alberta Rules of Court:

42   Where numerous persons have a common interest in the subject of an intended action, one or more of those persons may sue or be sued or may be authorized by the Court to defend on behalf of or for the benefit of all.

The intention of the Alberta legislature is clear.  Class actions may be brought.  Details of class action practice, however, are largely left to the courts.

32                               Alberta’s Rule 42 does not specify what is meant by “numerous” or by “common interest”.  It does not say when discovery may be made of class members other than the representative.  Nor does it specify how notice of the suit should be conveyed to potential class members, or how a court should deal with the possibility that some potential class members may desire to “opt out” of the class.  And it does not provide for costs, or for the distribution of the fund should an action for money damages be successful.

33                               Clearly, it would be advantageous if there existed a legislative framework addressing these issues.  The absence of comprehensive legislation means that courts are forced to rely heavily on individual case management to structure class proceedings.  This taxes judicial resources and denies the parties ex ante certainty as to their procedural rights.  One of the main weaknesses of the current Alberta regime is the absence of a threshold “certification” provision.  In British Columbia, Ontario, and Quebec, a class action may proceed only after the court certifies that the class and representative meet certain requirements.  In Alberta, by contrast, courts effectively certify ex post, only after the opposing party files a motion to strike.  It would be preferable if the appropriateness of the class action could be determined at the outset by certification.

34                               Absent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them:  Bell v. Wood, [1927] 1 W.W.R. 580 (B.C.S.C.), at pp. 581-82; Langley v. North West Water Authority, [1991] 3 All E.R. 610 (C.A.), leave denied  [1991] 1 W.L.R. 711n (H.L.); Newfoundland Association of Public Employees v. Newfoundland (1995), 132 Nfld. & P.E.I.R. 205 (Nfld. S.C.T.D.); W. A. Stevenson and J. E. Côté, Civil Procedure Guide, 1996, at p. 4.  However desirable comprehensive legislation on class action practice may be, if such legislation has not been enacted, the courts must determine the availability of the class action and the mechanics of class action practice.

35                               Alberta courts moved to fill the procedural vacuum in Korte, supra.  Korte prescribed four conditions for a class action:  (1) the class must be capable of clear and definite definition; (2) the principal issues of fact and law must be the same; (3) success for one of the plaintiffs must mean success for all; and (4) no individual assessment of the claims of individual plaintiffs need be made.

36                               The Korte criteria loosely parallel the criteria applied in other Canadian jurisdictions in which comprehensive class-action legislation has yet to be enacted: see, e.g.,  Ranjoy Sales and Leasing Ltd. v. Deloitte, Haskins and Sells, [1984] 4 W.W.R. 706 (Man. Q.B.); International Capital Corp. v. Schafer (1995), 130 Sask. R. 23 (Q.B.);  Guarantee Co. of North America v. Caisse populaire de Shippagan Ltée (1988), 86 N.B.R. (2d) 342 (Q.B.); Lee v. OCCO Developments Ltd. (1994), 148 N.B.R. (2d) 321 (Q.B.); Van Audenhove v. Nova Scotia (Attorney General) (1994), 134 N.S.R. (2d) 294 (S.C.), at para. 7; Horne v. Canada (Attorney General) (1995), 129 Nfld. & P.E.I.R. 109 (P.E.I.S.C.), at para. 24.

37                               The Korte criteria also bear resemblance to the class-certification criteria  in the British Columbia, Ontario, and Quebec class action statutes.  Under the British Columbia and Ontario statutes, an action will be certified as a class proceeding if (1) the pleadings or the notice of application disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the class representative; (3) the claims or defences of the class members raise common issues (in British Columbia, “whether or not those common issues predominate over issues affecting only individual members”); (4) a class proceeding would be the preferable procedure for the resolution of common issues; and (5) the class representative would fairly represent the interests of the class, has advanced a workable method of advancing the proceeding and notifying class members, and does not have, on the common issues for the class, an interest in conflict with other class members: see Ontario Class Proceedings Act, 1992, s. 5(1); British Columbia Class Proceedings Act, s. 4(1).  Under the Quebec statute, an action will be certified as a class proceeding if (1) the recourses of the class members raise identical, similar, or related questions of law or fact; (2) the alleged facts appear to warrant the conclusions sought; (3) the composition of the group makes joinder impracticable; and (4) the representative is in a position to adequately represent the interests of the class members: see Quebec Code of Civil Procedure, art. 1003.  

38                               While there are differences between the tests, four conditions emerge as necessary to a class action.  First, the class must be capable of clear definition.  Class definition is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment.  It is essential, therefore, that the class be defined clearly at the outset of the litigation.  The definition should state objective criteria by which members of the class can be identified.  While the criteria should bear a rational relationship to the common issues asserted by all class members, the criteria should not depend on the outcome of the litigation.  It is not necessary that every class member be named or known.  It is necessary, however, that any particular person’s claim to membership in the class be determinable by stated, objective criteria: see Branch, supra, at paras. 4.190-4.207; Friedenthal, Kane and Miller, Civil Procedure (2nd ed. 1993), at pp. 726-27; Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Ont. Ct. (Gen. Div.)), at paras. 10-11.

39                               Second, there must be issues of fact or law common to all class members.  Commonality tests have been a source of confusion in the courts.  The commonality question should be approached purposively. The underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis.  Thus an issue will be “common” only where its resolution is necessary to the resolution of each class member’s claim.  It is not essential that the class members be identically situated vis-à-vis the opposing party.  Nor is it necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member’s claim.  However, the class members’ claims must share a substantial common ingredient to justify a class action.  Determining whether the common issues justify a class action may require the court to examine the significance of the common issues in relation to individual issues.  In doing so, the court should remember that it may not always be possible for a representative party to plead the claims of each class member with the same particularity as would be required in an individual suit.

40                               Third, with regard to the common issues, success for one class member must mean success for all.  All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent.  A class action should not be allowed if class members have conflicting interests.

41                               Fourth, the class representative must adequately represent the class.  In assessing whether the proposed representative is adequate, the court may look to the motivation of the representative, the competence of the representative’s counsel, and the capacity of the representative to bear any costs that may be incurred by the representative in particular (as opposed to by counsel or by the class members generally).  The proposed representative need not be “typical” of the class, nor the “best” possible representative.  The court should be satisfied, however, that the proposed representative will vigorously and capably prosecute the interests of the class: see Branch, supra, at paras. 4.210-4.490; Friedenthal, Kane and Miller, supra, at pp. 729-32. 

42                               While the four factors outlined must be met for a class action to proceed, their satisfaction does not mean that the court must allow the action to proceed.  Other factors may weigh against allowing the action to proceed in representative form.  The defendant may wish to raise different defences with respect to different groups of plaintiffs.  It may be necessary to examine each class member in discovery.  Class members may raise important issues not shared by all members of the class.  Or  the proposed class may be so small that joinder would be a better solution.  Where such countervailing factors exist, the court has discretion to decide whether the class action should be permitted to proceed, notwithstanding that the essential conditions for the maintenance of a class action have been satisfied.

43                               The class action codes that have been adopted by British Columbia and Ontario offer some guidance as to factors that would generally not constitute arguments against allowing an action to proceed as a representative one.  Both state that certification should not be denied on the grounds that: (1) the relief claimed includes a demand for money damages that would require individual assessment after determination of the common issues; (2) the relief claimed relates to separate contracts involving different members of the class; (3) different class members seek different remedies; (4) the number of class members or the identity of every class member is unknown; or (5) the class includes subgroups that have claims or defences that raise common issues not shared by all members of the class:  see Ontario Class Proceedings Act, 1992, s. 6; British Columbia Class Proceedings Act, s. 7; see also Alberta Law Reform Institute, supra, at pp. 75-76.  Common sense suggests that these factors should no more bar a class action suit in Alberta than in Ontario or British Columbia.

44                               Where the conditions for a class action are met, the court should exercise its discretion to disallow it for negative reasons in a liberal and flexible manner, like the courts of equity of old.  The court should take into account the benefits the class action offers in the circumstances of the case as well as any unfairness that class proceedings may cause.  In the end, the court must strike a balance between efficiency and fairness.

45                               The need to strike a balance between efficiency and fairness belies the suggestion that a class action should be struck only where the deficiency is “plain and obvious”, as the Chambers judge held.   Unlike Rule 129, which is directed at the question of whether the claim should be prosecuted at all, Rule 42 is directed at the question of how the claim should be prosecuted.  The “plain and obvious” standard is appropriate where the result of striking is to forever end the action. It recognizes that a plaintiff “should not be ‘driven from the judgment seat’ at this very early stage unless it is quite plain that his alleged cause of action has no chance of success”: Drummond-Jackson v. British Medical Association, [1970] 1 All E.R. 1094 (C.A.), at p. 1102 (quoted in Hunt, supra, at pp. 974-75).  Denial of class status under Rule 42, by contrast, does not defeat the claim.  It merely places the plaintiffs in the position of any litigant who comes before the court in his or her individual capacity.  Moreover, nothing in Alberta’s rules suggests that class actions should be disallowed only where it is plain and obvious that the action should not proceed as a representative one.  Rule 42 and the analogous rules in other provinces merely state that a representative may maintain a class action if certain conditions are met.

46                               The need to strike a balance between efficiency and fairness also belies the suggestion that class actions should be approached restrictively.  The defendants argue that General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72, precludes a generous approach to class actions.  I respectfully disagree.  First, when Naken was decided, the modern class action was very much an untested procedure in Canada.  In the intervening years, the importance of the class action as a procedural tool in modern litigation has become manifest.  Indeed, the reform that has been effected since Naken has been motivated in large part by the recognition of the benefits that class actions can offer the parties, the court system, and society: see, e.g., Ontario Law Reform Commission, supra, at pp. 3-4.

47                               Second, Naken on its facts invited caution.  The action was brought on behalf of all persons who purchased new 1971 or 1972 Firenza motor vehicles in Ontario.  The complaint was that General Motors had misrepresented the quality of the vehicles and that the vehicles “were not reasonably fit for use” (p. 76).   The statement of claim alleged breach of warranty and breach of representation, and sought $1,000 in damages for each of approximately 4,600 plaintiffs.  Estey J., writing for a unanimous Court, disallowed the class action.  While each plaintiff raised the same claims against the defendant, the resolution of those claims would have required particularized evidence and fact-finding at both the liability and damages stages of the litigation.  Far from avoiding needless duplication, a class action would have unnecessarily complicated the resolution of what amounted to 4,600 individual claims. 

48                               To summarize, class actions should be allowed to proceed under Alberta’s Rule 42 where the following conditions are met: (1) the class is capable of clear definition; (2) there are issues of fact or law common to all class members; (3) success for one class member means success for all; and (4) the proposed representative  adequately represents the interests of the class.  If these conditions are met the court must also be satisfied, in the exercise of its discretion, that there are no countervailing considerations that outweigh the benefits of allowing the class action to proceed.

49                               Other procedural  issues may arise.  One is notice.  A judgment is binding on a class member only if the class member is notified of the suit and is given an opportunity to exclude himself or herself from the proceeding.  This case does not raise the issue of what constitutes sufficient notice.  However, prudence suggests that all potential class members be informed of the existence of the suit, of the common issues that the suit seeks to resolve, and of the right of each class member to opt out, and that this be done before any decision is made that purports to prejudice or otherwise affect the interests of class members.

50                               Another procedural issue that may arise is how to deal with non-common issues.  The court retains discretion to determine how the individual issues should be addressed, once common issues have been resolved: see Branch, supra, at para. 18.10.  Generally, individual issues will be resolved in individual proceedings.  However, as under the legislation of British Columbia, Ontario, and Quebec, a court may specify special procedures that it considers necessary or useful: see Ontario Class Proceedings Act, 1992, s. 25; British Columbia Class Proceedings Act, s. 27; Quebec Code of Civil Procedure, art. 1039.

51                               The diversity of class actions makes it difficult to anticipate all of the procedural complexities that may arise.   In the absence of comprehensive class-action legislation, courts must address procedural complexities on a case-by-case basis.  Courts should approach these issues as they do the question of whether a class action should be allowed: in a flexible and liberal manner, seeking a balance between efficiency and fairness.

C.   Whether the Investors Have Satisfied Rule 42

52                               The four conditions to the maintenance of a class action are satisfied here.  First, the class is clearly defined.  The respondents Lin and Wu represent themselves and “[229 other] immigrant investors . . . who each invested at least the sum of $150,000.00 into a fund totalling $34,065,000.00, the said sum to be managed, administered and secured by . . . Western Canadian Shopping Centres Inc.”.  Who falls within the class can be ascertained on the basis of documentary evidence that the parties have put before the court.  Second, common issues of fact and law unite all members of the class.  The essence of the investors’ complaint is that the defendants owed them fiduciary duties which they breached. While the investors’ Amended Statement of Claim alludes to claims in negligence and misrepresentation, counsel for the investors undertook in argument before this Court to abandon all but the fiduciary duty claims.  Third, at this stage of the proceedings, it appears that resolving one class member’s breach of fiduciary claim would effectively resolve the claims of every class member.  As a result of security-pooling agreements effected by WCSC, each investor now has an interest, proportional to his or her investment, in the same underlying security.  Finally, the representative plaintiffs are appropriate.

53                               The defendants argue that the proposed suit is not amenable to prosecution as a class action because: (1) there are in fact multiple classes of plaintiffs; (2) the defendants will raise multiple defences to different causes of action advanced against different defendants; and (3) in order to prevail, the investors must show actual reliance on the part of each class member.  I find these arguments unpersuasive.

54                               The defendants’ contention that there are multiple classes of plaintiffs is unconvincing.  No doubt, differences exist.  Different investors invested at different times, in different jurisdictions, on the basis of different offering memoranda, through different agents, in different series of debentures, and learned about the underlying events through different disclosure documents.  Some investors may possess rescissionary rights that others do not.  The fact remains, however, that the investors raise essentially the same claims requiring resolution of the same facts.  While it may eventually emerge that different subgroups of investors have different rights against the defendants, this possibility does not necessarily defeat the investors’ right to proceed as a class.  If material differences emerge, the court can deal with them when the time comes.

55                               The defendants’ contention that the investors should not be permitted to sue as a class because each must show actual reliance to establish breach of fiduciary duty also fails to convince.   In recent decades fiduciary obligations have been applied in new contexts, and the full scope of their application remains to be precisely defined.  The fiduciary duty issues raised here are common to all the investors.  A class action should not be foreclosed on the ground that there is uncertainty as to the resolution of issues common to all class members.  If it is determined that the investors must show individual reliance, the court may then consider whether the class action should continue.

56                               The same applies to the contention that different defences will be raised with respect to different class members. Simply asserting this possibility does not negate a class action.  If and when different defences are asserted, the court may solve the problem or withdraw leave to proceed as a class.

57                               I conclude that the basic conditions for a class action are met and that efficiency and fairness favour permitting it to proceed.

D.   Cross-Appeal

58                               The investors take issue on cross-appeal with the Court of Appeal’s allowance of individualized discovery from each class member.  The Court of Appeal held that the defendants are entitled, under Rules 187 and 201, to examination and discovery of each member of the class.  The investors argue that the question of whether discovery should be allowed from each class member is a question best left to a case management judge appointed pursuant to the Alberta Rules of Court Binder, Practice Note No. 7.

59                               I agree that allowing individualized discovery at this stage of the proceedings would be premature.  One of the benefits of a class action is that discovery of the class representatives will usually suffice and make unnecessary discovery of each individual class member.  Cases where individual discovery is required of all class members are the exception rather than the rule.  Indeed, the necessity of individual discovery may be a factor weighing against allowing the action to proceed in representative form. 

60                               I would allow the defendants to examine the representative plaintiffs as of right.  Thereafter, examination of other class members should be available only by order of the court, upon the defendants showing reasonable necessity.

VI.   Conclusion

61                               For the foregoing reasons, I would dismiss the appeal and allow the investors to proceed as a class.  I would allow the cross-appeal. 

62                               Costs of the appeal and cross-appeal are to the respondents.

Appeal dismissed and cross-appeal allowed with costs.

Solicitors for the appellant/respondent on cross-appeal The Royal Trust Company:  Burnet, Duckworth & Palmer, Calgary.

Solicitors for the appellants/respondents on cross-appeal James G. Engdahl, William R. MacNeill, Jon R. MacNeill, Gary L. Billingsley, R. Byron Henderson: McLennan Ross, Edmonton.

Solicitors for the appellant/respondent on cross-appeal C. Michael Ryer:  Peacock Linder & Halt, Calgary.

Solicitors for the appellant/respondent on cross-appeal Peter K. Gummer:  Brownlee Fryett, Edmonton.

Solicitors for the appellants/respondents on cross-appeal Ernst & Young and Alan Lundell:  Parlee McLaws, Edmonton.

Solicitors for the appellants/respondents on cross-appeal Bennett Jones Verchere and Garnet Schulhauser:  Gowling Lafleur Henderson, Calgary.

Solicitors for the appellant/respondent on cross-appeal Arthur Andersen & Co.:  Lucas Bowker & White, Edmonton.

Solicitors for the respondents/appellants on cross-appeal:  Durocher Simpson, Edmonton.