Haowei Chen Plaintiff And: Memorial University of Newfoundland v. Labrador, 2019 NLSC 193

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Chen v. Memorial University of Newfoundland and Labrador , 2019 NLSC 193 Date : October 29, 2019 Docket : 201501G0901 Between: Haowei Chen Plaintiff And: Memorial University of Newfoundland and Labrador Defendant Before: Justice Carl R. Thompson Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 24, 2019 Date of Oral Judgment: October 24, 2019

Summary: On a request to abandon commencement of a class action, ordered that notice be given to all persons falling within the defined class. Appearances:

Stephen P. Orr Appearing on behalf of the Plaintiff Gregory A. C. Moores Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Smith v. Crown Life Insurance Company (2002), 40 C.P.C. (6th) 371 , 43 C.C.L.I. (4th) 123 ( Ont. Sup. Ct. J.) STATUTES CONSIDERED: Class Actions Act , S.N.L. 2001, c. C-18.1 TEXTS CONSIDERED: Hon. Warren K.

Winkler et al ., Law of Class Actions in Canada (Thomson Reuters, 2014) REASONS FOR JUDGMENT Thompson, J. : INTRODUCTION [ 1 ] This is an application to convert this proposed class action proceeding to individual personal actions of members of the class. facts [ 2 ] The facts giving rise to this application are not in issue to the extent of the jurisdiction that appears to be required. The potential Representative Plaintiff is Mr. Haowei Chen. He resided at 285 Freshwater Road in the City of St. John’s in the Province of Newfoundland and Labrador at the time of the commencement of this proceeding.

He was a student at Memorial University of Newfoundland and Labrador commencing in the 2011-2012 academic year. [ 3 ] Mr. Chen was one of four individuals who wanted to start a class action against Memorial University and apparently was the only one who was able to be the Representative Plaintiff at that time due to his being the only person resident in the province. The other three individuals who were prepared to start the action then no longer resided in this province and so were not eligible.

Their names are; Liang Guo, Meng Zhao and Da Xu and are now the proposed persons to convert to separate non-class action proceedings. [ 4 ] Mr. Chen moved to Ontario and then to British Columbia and as such could no longer be Representative Plaintiff. The Plaintiff has attempted unsuccessfully to find a substitute Representative Plaintiff.

The Plaintiff says this is in part because once potential Representative Plaintiffs fail out of Memorial University, they lose their student Visa entitlement and are required to return to their home country in China. [ 5 ] The Applicant no longer wishes to pursue the matter under the Class Actions Act , S.N.L. 2001, c. C-18.1 and prefers now to pursue it as a regular Statement of Claim and add the additional Plaintiffs who were originally planning on being members of the class action. [ 6 ] The Class Actions Act states: 35.

(1) A class action may be settled, discontinued or abandoned only with the approval of the court on terms the court considers appropriate. …

(5) In dismissing a class action or in approving a settlement, discontinuance or abandonment, the court may consider whether notice should be given under

section 20 and whether the notice should include (

a) an account of the conduct of the action; (

b) a statement of the result of the action; and

(

c) a description of a plan for distributing settlement funds. prejudice to Potential class members [ 7 ] This is effectively an application requesting abandonment of the proposed class action proceeding for purposes of the Class Actions Act . [ 8 ] Notice to the putative class members of a discontinuance of a proposed class action may be significant if prospective class members have been relying on the class proceeding rather than commencing actions of their own.

To the extent that discontinuance of a class proceeding may recommence the running of any limitation period, these potential class members may be prejudiced from pursuing their rights and ought to be given reasonable notice. [ 9 ] The Honourable Warren K. Winkler et al , in Law of Class Actions in Canada (Thomson Reuters, 2014) at 224 note that the Plaintiff must demonstrate that the discontinuance will not give rise to prejudice or unfairness to members of the class ( Smith v. Crown Life Insurance Company (2002), 40 C.P.C. (6th) 371 , 43 C.C.L.I. (4th) 123 ( Ont. Sup. Ct.

J.) . [ 10 ] As well, the authors note that, even where there is a term of a proposed settlement with the plaintiff in an uncertified class proceeding that the action be discontinued, reasonable notice should be given to the putative class members whose litigation rights may be affected by discontinuance ( Smith ). [ 11 ] In my view, there is potential prejudice to putative class members by this application.

There is on its face, without further inquiry, the potential for putative class members to have their action prescribed. [ 12 ] Memorial University of Newfoundland notes that there was a news report in 2013 of approximately 50 other graduate students expressing issues similar to those disclosed in these proceedings. [ 13 ] Accordingly, after discussion with counsel which I will now engage, I am going to make an Order pursuant to section 35(1) and (5) of the Class Actions Act . [ 14 ] I Order that pursuant to section 35(1) and (5) of the Class Actions Act that the Plaintiff obtain the names and addresses of all class members who may fall within the defined class as described in the Statement of Claim and give them notice of this application. [ 15 ] This application is adjourned sine die . _____________________________ Carl R.

Thompson Justice