By William E. McNally and Barbara E. Cotton

There has been much judicial activity in the area of class action proceedings of late. One aspect of class action proceedings of interest is subclass designation - in what circumstances will the courts be amenable to designating subclasses within the broader defined class? The jurisprudence remains in a state of infancy on this point but it is the thesis of this article that common themes have emerged.

This article will postulate that there are four common themes indicative of when the courts will designate subclasses suggested by Canadian jurisprudence and secondary materials: (1) when there is a conflict of interest between the broad class and the proposed subclass(es); (2) when there are "common issues" in the proposed subclass(es); (3) as a subset of the "common issues" theme, when the proposed subclass has a unique theory of liability to advance or if there is a unique defence relative to the proposed subclass; and (4) on the basis of regional segregation, frequently because the laws of the provinces or outside of Canada are different, and in particular if limitation periods vary.

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