In Canada, we are told, class actions rarely proceed to trial. The big fight

is at the preliminary stage of whether the class should be 'certified' to

allow the case to go ahead. If it is, the case usually settles without a

trial.

One recent exception is Barbour v. The University of British Columbia, 2009

BCSC 425, decided on 30 March and available on canlii.org.

This was a class action to recover parking penalties levied by the

University of British Columbia. The defendant university conceded that its

parking regulations, under which penalties had been collected for years,

were ultra vires. It sought to justify its imposition of such penalties on

the basis of contract, or its private law rights. The judge held that the

defendant lacked the capacity to make contracts embodying rules that were

themselves ultra vires. The judge held that the defendant's rights as a

landowner gave it some powers to tow and impound cars, but not to impose

parking fines.

He went on to conclude that the holding in Kingstreet v NB applied to the

defendant as a public law body. Hence the defendant was liable, subject to

limitations defences, which were not resolved at this stage of the

proceedings.

This case may well be appealed. The amount of money in issue is said to be

over $4 million.

Lionel

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