Location, Location, Location: One Reason Jurisdiction Matters For Proposed Class Actions

When does an action become a class action? The answer depends on what jurisdiction the Plaintiff has advanced her claim, as illustrated by the recent decision of the Manitoba Court of Appeal in McLean et al v Canada (Attorney General),¹ in which the Court was called upon to decide whether a notice of discontinuance was governed by the Court of Queen's Bench Rules² or subject to section 35(1) of Manitoba's Class Proceedings Act.³

In July, 2009, the plaintiffs filed a proposed class action (the "Manitoba Action") in Manitoba on behalf of "Aboriginal persons or peoples and their families against Canada for recognition of, and compensation for, harms arising from federal government policy requiring them to attend day schools that were established by Canada under the Indian Act⁴".⁵ The plaintiffs filed an amended claim in November, 2009. No further steps were taken and the Manitoba Action was never certified.