Some Say Timing is Everything: Recent Developments in the Sequencing of Pre-Certification Motions

Published: August 12, 2020

Authors: Jason Mohrbutter, K.C., Allison Graham

Categories: Class Actions

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In recent decisions, Saskatchewan, Alberta, and British Columbia Courts have closely considered the issue of the appropriate timing of pre-certification motions.

These courts have rejected a categorical bar to pre-certification preliminary motions and have recognized a contextual approach to be applied on a case-by-case basis. The case-by-case approach is reflected in the different conclusions reached pertaining to the timing of abuse of process motions.

Saskatchewan

In Saskatchewan, the Court of Queen’s Bench considered the issue of timing in a proposed class action commenced against Facebook (Kish v Facebook (8 January 2020) Regina, QBG 1728 of 2018 (Sask QB) (unreported)). While that class action was commenced in Saskatchewan, different law firms had commenced similar claims in Ontario against Facebook. In Ontario, the competing firms managed to consensually resolve a carriage motion and the Court issued an order as to who was proceeding and which actions would be stayed. Counsel in the Saskatchewan Kish proceedings was not involved in any of the Ontario Facebook proceedings.

Following this, the defendants sought to stay the action against them in Saskatchewan. They argued that the Saskatchewan action was duplicative, constituted a collateral attack on the Ontario consent carriage order or, alternatively, that Saskatchewan was not the appropriate and convenient forum for the litigation. The plaintiff argued the application should not be heard before certification but rather at the certification hearing.

To answer this question, Justice Keene surveyed the law in Saskatchewan, noting that as a general principle, the Court’s goal is to hear a certification application prior to determining any other motion. However, he recognized that there are exceptions to this principle and the particular circumstances of each case should be carefully considered. He adopted the list of non-exhaustive factors set out in Piett v Global Learning Group Inc., 2018 SKQB 144, as considerations for determining whether to hear an application before hearing the certification application:

  • whether hearing an application(s) in advance of certification will result in multiple rounds of proceedings through various levels of court;
  • whether the application will require a substantial record;
  • whether the application addresses an issue which would be canvassed at the certification hearing in any event;
  • whether the court will have all of the evidence necessary to decide the motion or there is relevant evidence that should inform the decision that might form part of the certification record;
  • whether the application will likely, or at most, dispose of the action only in relation to some claims and some but not all defendants;
  • whether the application could eliminate all claims against all defendants;
  • whether the plaintiff has proceeded expeditiously to seek certification;
  • whether it is more likely that scheduling the application to be heard after certification will promote efficiency in the circumstances;
  • whether the motion is time sensitive or is necessary to ensure the proceeding is conducted fairly; and
  • whether the applicant alleges it is not properly a party to an action which makes allegations which stigmatizes it in its professional capacity.

Ultimately, Justice Keene found that the defendants’ application should be deferred to the certification hearing. While some factors suggested the application should be heard first, the defendants had not met their burden and the plaintiff was given the “benefit of the doubt” (at para 77). The key factor appeared to be that elements of the motion were similar to what would be determined pursuant to s. 6(2) of the Class Actions Act which allows a Saskatchewan court to determine whether it is preferable to stand down in favour of another similar multi-jurisdictional proceeding somewhere else in Canada.

This contrasts Justice Keene’s decision in Johnson v Equifax 2018 SKQB 305 where he found an abuse of process motion should be heard prior to certification. The defendants persuaded Justice Keene that none of the considerations in s. 6(2) of the Class Action Act were engaged. The facts were significantly different from Kish. In Johnson class counsel had commenced actions in three other jurisdictions and had unsuccessfully pursued carriage in Ontario. During the course of the carriage proceedings, Johnson’s counsel had submitted the actions outside of Ontario had been commenced to protect limitation periods and that “the intention is to proceed in Ontario”, that “Ontario is the preferred forum”, and that “certification would not be simultaneously sought in Saskatchewan … pending the Ontario proceedings”. The crux of the defendant’s argument was that the Saskatchewan action had not been commenced for any bona fide purpose.

Alberta

The Alberta Court of Queen’s Bench also recently dealt with the issue of sequencing. In Briton v Ford Motor Company of Canada Ltd, 2020 ABQB 344 the Plaintiff commenced a class action alleging the defendant’s vehicles contained improperly designed spark plugs. An identical proceeding had been commenced in Saskatchewan by the same law firm many years earlier. The Alberta plaintiffs had participated in the Saskatchewan action. The Alberta action began after the Saskatchewan plaintiff encountered delays in Saskatchewan (although the action remained extant). The Defendants then brought an application seeking to stay the Alberta action on the basis that the Alberta action was an abuse of process.

Justice Eamon reviewed the law with respect to timing in Alberta and identified the issue as a discretionary question to be guided by considerations of efficiency, judicial economy and fairness. He noted that there was potential delay and additional cost associated with bifurcation which weighed in favour of hearing the application at the certification hearing. On the other hand, the Saskatchewan action remained extant which could give rise to competing certification applications with the potential of inconsistent decisions. Moreover, the remaining work of attending and arguing the potentially unnecessary certification application would also be a significant cost to the parties.

Ultimately, weighing these considerations, Justice Eamon found that, in the circumstances, the most fair and efficient path forward was to hear the Defendants’ application first. In these circumstances, the prospect of delay arising from a potential appeal was outweighed by the potential of duplicative efforts and inconsistent decisions.

British Columbia

The British Columbia Supreme Court has also taken a contextual, factor-based approach to determining the sequencing of pre-certification motions. In British Columbia v Apotex Inc., 2020 BCSC 412, the defendants sought to litigate three groups of applications prior to certification. These applications sought (a) to strike all or part of the claim or to seek summary judgment; (b) to challenge the Court’s jurisdiction; and (c) to challenge the constitutionality of the Opioid Damages and Health Care Costs Recovery Act, SBC 2018, c 35. The plaintiff argued that the certification hearing should proceed before any of these applications were heard.

Justice Brundrett agreed with the plaintiff. He first noted that the certification hearing is generally the first application heard in a class action case but that the determination of whether an application should be heard at an earlier time is a discretionary decision. Next, he adopted the following list of factors, as set out in Cannon v Funds for Canada Foundation, 2010 ONSC 146 and Lierberman et al. v Business Development Bank of Canada, 2005 BCSC 389:

  1. Will the application dispose of the entire proceeding or substantially narrow the issues to be determined?
  2. What is the likelihood of delays and increased costs associated with the application?
  3. Will the outcome of the motion promote settlement?
  4. Will the outcome of the motion give rise to interlocutory appeals and delays that will affect certification?
  5. The interests of economy and judicial efficiency;
  6. Generally, will scheduling the application in advance of certification promote the fair and efficient determination of the proceeding?
  7. Strength and complexity of proposed arguments; and
  8. Interplay with certification as additional factors.

Applied to the case before him, he concluded that the applications should all be heard at the certification hearing because:

  • the motions to strike should not predate the certification hearing – any benefits of narrowing the issues, promoting settlement or facilitating judicial economy and efficiency were outweighed by the potential for significant delays and further costs of the hearing and any associated appeals;
  • the motions for summary judgment were not permitted to proceed prior to certification because this would likely lead to significant delay and increased costs, would only remove some of the defendants and the evidentiary record was not complete;
  • the applications challenging the court’s jurisdiction were deferred because the issue of territorial competence would overlap with the issues to be decided at the certification hearing, the applications would not dispose of the entire proceedings and there was a high likelihood of appeals regardless of the outcome; and
  • the constitutional challenges were left for the certification hearing because to do otherwise carried a high likelihood of delay and costs, was unlikely to have a significant impact on settlement and would not promote the interests of economy and efficiency.

Leave to appeal the sequencing order was recently granted, see 2020 BCCA 186.

In Huebner Estate v PR Seniors 2020 BCSC 1037 the defendants argued the bulk of the plaintiff’s certification record was inadmissible. The Plaintiff unsuccessfully argued that determination should take place at certification. The Court relied on a similar list of factors noted in the Apotex decision and concluded it was more efficient to establish the evidentiary foundation for the certification motion in advance.

Going Forward

These decisions illustrate the contextual approach to determining whether pre-certification motions should be heard. While the general starting point for the analysis remains that the certification hearing should occur first, the courts will consider numerous factors in determining sequencing and overall, will focus on overarching considerations of efficiency, judicial economy and fairness.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relief upon or taken as legal advice of opinion. Readers should consult a legal professional for specific advice in any particular situation.