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Generous Approach to Certification Taken by BC Court of Appeal in Basyal

  • On 8 June 2018, the Court of Appeal for British Columbia released its decision inBasyal v. Mac's Convenience Stores Inc.,2018 BCCA 235, which case arises in the context of the federal Temporary Foreign Workers Program. 

    The primary cause of action asserted by the plaintiff class relates to alleged breaches of employment contracts with Mac's Convenience Stores Inc. to provide work in the quantity, or at all, to individual plaintiffs upon their coming to Canada specifically to take up such work with a Mac's corporate store. The other group of allegations against a set of foreign defendants assert claims in unjust enrichment, breach of fiduciary duties, "waiver of tort", and conspiracy. The appeal focused almost exclusively on the first criteria of the certification test, namely whether the pleadings disclosed a reasonable cause of action. With some exceptions, the Court held that the claims did not.

    In the result, the Court of Appeal stayed the underlying proceeding while the plaintiffs amend their pleading. Revision will also likely be necessary to the common issues. The Court also provided a suggested revised class definition. Despite these issues with the proceeding as asserted, the Court of Appeal held that the proceeding should be certified and reserved to itself the responsibility of reviewing the amended pleadings failing the parties' agreement as to sufficiency.