Class actions promote litigation efficiency and access to justice, but they can also create built‑in tension between different groups of plaintiffs. For counsel and parties considering a class proceeding, an important question is whether one class definition can fairly capture everyone’s interests. Ingram v. Alberta[1] (“Ingram”), shows how the Alberta Court of King’s Bench (the “Court”) responded when the framing of a COVID‑19 business loss claim effectively pitted parts of the proposed corporate class against each other, and what tools the Court used to manage that conflict.
This decision offers practical guidance on how to define a corporate class, address internal conflicts between different types of businesses, and avoid derailing certification in Alberta class proceedings.
Background: What was at stake in Ingram v. Alberta?
The Ingram case was an action brought against His Majesty the King in Right of Alberta by individuals who owned and operated businesses who were adversely affected by the orders issued in the name of the Chief Medical Officer of Health to mitigate the impact of the COVID-19 Pandemic (the “CMOH Orders”).[2] Those original plaintiffs were successful in certifying their class, and then brought the application underlying Ingram to add another class of plaintiffs made up of corporations and other business organizations that were affected by the CMOH Orders (the “Proposed Corporate Class”).[3]
How did the Court identify a conflict within the proposed corporate class?
The Court raised concern on this application with an apparent conflict between the members of the Proposed Corporate Class. Namely, the pleadings, written arguments and oral arguments made in support of the plaintiffs’ case revealed that the plaintiffs’ position was that the CMOH Orders harmed small and medium-sized business disproportionately and possibly benefited large businesses.[4] The Court’s concern was that the definition of the Proposed Corporate Class advanced by the plaintiffs included all corporations affected by the CMOH Orders, thereby including both “small” and “large” corporations.[5]
The Court found that there was a fundamental conflict of interest between small and large corporations embedded in the pleadings and in the written and oral submissions of the plaintiffs. Namely, “[s]mall corporations are painted as the victims of the CMOH Orders and large corporations are posited to be the beneficiaries. Whether or not there is truth in either of these suppositions, they pit the Proposed Corporate Class against itself.”
What options did the Court give plaintiffs’ counsel to address the conflict?
Rather than dismissing the plaintiffs’ application because of this conflict, the Court exercised its authority under subsection 6(1) of the Class Proceedings Act[6] to adjourn the certification application to allow the plaintiffs to amend their materials.[7] The Court was satisfied that an adjournment was appropriate because the application to certify the Proposed Corporate Class, in its current form, posed “a significant threat to the efficient and fair administration of the proceeding.”[8]
The Court provided the following list of solutions to the plaintiffs for ways to amend their materials prior to the application being restored to the list:
- amending the pleadings and application so that the action only sought to certify a class of objectively defined small corporations;
- amending the pleadings to reflect that the claim is pursued on behalf of all corporations without any preference for corporations of a particular size;
- proposing a sub-class or classes of different sized corporations;
- appointing additional representative plaintiffs to represent the interests of corporations of different sizes; and
- obtaining separate legal representation for different classes of corporations.
Practical takeaways
The Court in Ingram compared the issues that arose in the context of conflicts between members of a class of plaintiffs to those that arise when law firms engage in joint retainers with clients. Citing the Law Society of Alberta’s Code of Conduct, the Court stated that before a lawyer takes on a joint retainer for two or more clients, the lawyer must not only obtain the consent of the clients but “ensure the joint retainer is in the best interests of each client.”[9] The relevant question when a lawyer considers taking on a joint retainer is whether the lawyer will be able to demonstrate that each client “received representation equal to that which would have been rendered by independent counsel”, and when the answer to that question is “no”, then the clients should not be jointly represented.[10]
The Court acknowledged that the Code of Conduct did not apply to the situation at hand but also pointed out that it clearly illustrated the principles at play in this case.[11] When considering the scope of a class of plaintiffs for a potential class action, plaintiffs and their legal counsel should be mindful of not only the willingness of a certain class of plaintiffs to participate in a law suit, but also, whether the interests of different class members are likely to conflict, and whether bringing the action as a class action is in the best interests of all members of the class of plaintiffs.
If you are structuring or defending class proceedings involving different types of class members, Miller Thomson’s Class Actions and Litigation lawyers can help you assess potential intra‑class conflicts early, adjust class definitions and develop a certification strategy that aligns with the interests of all class members. Please contact us to discuss how this decision may affect your current or planned class actions.
[1] 2025 ABKB 420. (“Ingram”)
[2] Ibid at para 1.
[3] Ibid at para 1.
[4] Ibid at para 3.
[5] Ibid at para 32.
[6] SA 2003, c C-16.5.
[7] Ingram, supra note 1 at para 39.
[8] Ibid at para 39.
[9] Ibid at para 33.
[10] Ibid at para 33.
[11] Ibid at para 33.
