By Ward Branch and Don Lebans of Branch MacMaster Barristers & Solicitors.
This paper, written in 2005, deals with class actions in which representative plaintiffs wish to sue multiple defendants even though only other members of the class have a cause of action against some of the named defendants.
The paper explains that the courts in Ontario and British Columbia have articulated conflicting answers to the question of whether one plaintiff can sue an entire industry. In Ontario, the Courts insist on a plaintiff with a cause of action against each of the named defendants. In British Columbia, the Court of Appeal has indicated that a plaintiff can sue companies with whom he has had no dealings.
The paper discusses the approaches adopted in British Columbia, Ontario, and Quebec, and considers the merits of the different approaches.
The paper concludes that unless (1) the factual underpinnings of the industry claim are almost identical across companies, and (2) it is hard to locate class members for each major company, it may not be a wise to seek certification without having a representative plaintiff for each defendant.
