In MM Fund v. Excelsior Mining Corp. (MM Fund), the B.C. Court of Appeal upheld a decision striking a plaintiff's certification application because the plaintiff mutual fund was not a resident of British Columbia. Under s. 2(1) of the B.C. Class Proceedings Act (BCCA), only B.C. residents have standing to commence class proceedings in the province. The BCCA endorsed the "central management and control" test for determining the residency of a corporation or trust under the Class Proceedings Act.
Here, the plaintiff fund was a resident of Ontario, not British Columbia—it was established under the laws of Ontario, its central management, control and trustees were located in Ontario, and it had no registered address or physical operations in British Columbia. The fact that the plaintiff was registered with the B.C. Securities Commission, was governed by the B.C. Securities Act, and offered units of its fund for sale in British Columbia did not make the plaintiff a B.C. resident.
In interpreting the meaning of "resident", which is not defined in the Class Proceedings Act, the BCCA looked to definitions in case law from other contexts such as tax and family law. The BCCA also confirmed that the court's jurisdiction and the plaintiff's residency are separate concepts. It is of course possible for the B.C. Supreme Court to have jurisdiction over a non-resident litigant in other contexts. The BCCA also held that the residency requirement in s. 2(1) is mandatory, not permissive. It is not a "remnant" from a previous iteration of the Class Proceedings Act that contained an opt-in regime for non-resident class members.
In recent years, the B.C. court has seen increased class action filings from plaintiff's counsel located outside British Columbia. MM Fund warns of the risks of selecting a plaintiff that resides out-of-province, not in British Columbia.
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