Stewart McKelvey

CLASS ACTION REGIONAL OVERVIEW T By Dan Boone and Jonathan Dale he body of class action jurisprudence from Atlantic Canada continues to grow. Newfoundland and Labrador has had its class actions legislation in force since 2002 and, given its size, has a relatively large number of class action decisions. New Brunswick and Nova Scotia have had their class actions legislation in force since 2007 and 2008, respectively, while Prince Edward Island has not yet passed any legislation in respect of class proceedings. The number of certified class actions continues to grow in Atlantic Canada, as does the number of actions with certification applications pending. It ap- pears that the class action legislation is being gener- ously applied in Atlantic Canada, including in respect of the certification requirements, the admissibility of evidence on certification and the participation of third parties at certification. In 2011, the Newfoundland and Labrador Court of Appeal in Acreman & Lee v. Memorial University of Newfoundland upheld a certification decision in an action commenced by University pensioners. The class alleged that the University had historically paid the full premium for their post-retirement health in- surance and had wrongfully required them to begin contributing to same. Representations, in the form of retirement letters or retirement seminars, were made to some members of the class, although not all class members received a representation as to future en- titlement and the representations varied. In uphold- ing certification, the Court of Appeal appears to have based its decision on the common bond that all mem- bers of the class, at one time, received their post-re- tirement benefits at no cost and were now compelled to contribute. In an apparent attempt to refute the concerns of the university, the Court also noted that the creation of subclasses or decertification might be considered in the future. The Court of Appeal was referred to Nadolny v. Peel, a 2009 decision in which the Ontario Superior Court of Justice had no hesita- tion in denying certification on almost identical facts, but did not refer to it in its decision. Also in 2011, the Newfoundland and Labrador Supreme Court denied the plaintiff's application to stay third-party proceedings pending certification. In Rice v. Atlantic Lottery Corp., the plaintiffs alleged that video lottery machines provided for use by the defendant were inherently deceptive and rendered them addictive and dangerous when used as intend- ed. The defendant brought third-party proceedings against the manufacturers, suppliers and designers of the machines. The Court placed particular emphasis upon the 2008 New Brunswick Court of Queen's Bench decision in Bryson v. Canada (Attorney Gener- al) and, in holding that the third-parties could partici- pate at the certification hearing, noted that the third- party claims were not mere claims for indemnity, but instead involved the determination of many of the same issues at play in the main action. In Best v. Nunatsiavut Assembly, three proposed class actions alleged that the class members had been denied membership in the Labrador Inuit Association and claimed monetary damages for the correspond- ing loss of benefits pursuant to the applicable land claims agreement. The Newfoundland and Labra- dor Trial Division set aside the actions for want of jurisdiction, holding that the land claims agreement expressly provided for a right of judicial review on membership decisions to the Federal Court. On ap- peal in 2011, and in reliance upon the recent Supreme Court of Canada decision in McArthur v. Canada, the DOING BUSINESS IN ATLANTIC CANADA SUMMER 2012 5

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