According to a recent Lawyer's Daily article, the British Columbia Court of Appeal has upheld a lower court’s decision to not certify a class action against a subsidiary of financial giant RBC, with a lawyer in the case calling the decision unfortunate because the issues raised are too complex to be brought in any other form than a class proceeding.
Professor Jasminka Kalajdzic commented on the decision, saying she felt the court dismissed some of the considerations judges are supposed to consider when deciding on certification of a class.
“One of the big considerations is what the alternatives are, and they didn’t really pay much attention to that question,” she said. “And in this case, it is hard to imagine that there is an alternative to a class proceeding, because individually it would be almost impossible for most people who have invested a little bit of money in a mutual fund to bring any action. So, I think the court may have given short shrift to that question, which is part of the test on certification.”
She added that the “bottom line” of the case is a situation where a financial institution did a bad thing but the people who they owed a fiduciary duty to, namely potential members of the class, don’t get any compensation.
“There is partly a consequence here with what the securities commission did, so it’s not as if they got off scot-free,” said Professor Kalajdzic. “But I think as a policy matter it is important to also think about compensation and how we go about getting compensation for people who have been wronged by powerful institutions.”