What to Take to Class: Sequencing Motions in Canadian Class Actions

Certification motions come first in class actions. At least, that is what Canadian courts have presumed, until recently. Now, two of Canada’s provinces, Ontario and British Columbia, are teaching new lessons. Sequencing is no longer one-size-fits-all but is shifting toward a much more bespoke procedure designed for the case at hand.

Ontario Legislation Narrows Judicial Discretion

In Ontario, legislative amendments introduced by the Smarter and Stronger Justice Act, 2020 reversed the long-standing presumption that certification should be the first motion heard in an Ontario class action. SO 2020 c.11 – Bill 161. What that means today is that, in any class action started in Ontario after October 1, 2020, courts will hear early dispositive motions or motions that narrow the issues ahead of or along with the certification motion.

So far, only two cases have been decided under this new regime. In those cases, Dufault v Toronto Dominion Bank, 2021 ONSC 6223 and Davis v Desjardins Financial Services Firm Inc., 2022 ONSC 2016, the Ontario Superior Court of Justice was tasked with determining whether to sequence a summary judgment motion ahead of certification. In deciding to schedule the motions pre-certification, Ontario courts appear to have accepted that the new rule narrows its discretion. Only if there are “good reasons” to deny a request to schedule a pre-certification summary judgment motion will the court do so. Dufault v Toronto Dominion Bank, 2021 ONSC 6223 at para 10. Reasons identified include:

• the motion does not narrow or dispose of all or part of the case, but is a delay tactic; and
• although the motion could narrow or dispose of all or part of the litigation, the certification motion is close enough that it makes sense to hear the motions together.

British Columbia’s Common Law Rule

In British Columbia, the new lesson plan comes from the Court of Appeal’s decision in British Columbia v The Jean Coutu Group (PJC) Inc., 2021 BCCA 219.

In its unanimous decision, the Court of Appeal rejected the presumption that certification motions should be the first procedural matter heard. Rather, it endorsed a bespoke approach: “Each sequencing application must be determined in the context of the particular case before the court and the court’s discretion ought to be exercised in a manner that facilitates and achieves judicial efficiency and the timely resolution of the dispute.” Id. at para 37.

The British Columbia Supreme Court has affirmed the Jean Coutu approach repeatedly when exercising its sequencing discretion. In British Columbia, the Court generally hears preliminary motions before certification when they address discrete legal issues that can be parsed out from the broader claim, narrow the issues, or completely dispose of issues. Elsser v University of Victoria, 2021 BCSC 1579; Aura Ventures Corp. v Vancouver (City), 2021 BCSC 1568; MM Fund v Excelsior Mining Corp, 2022 BCSC 1541. Conversely, the Court has declined to sequence a summary judgment application before certification when it would cause delay that outweighs any streamlining benefit that hearing the application before may achieve. Wesley v British Columbia, 2022 BCSC 303.

Lessons Learned

Although class is far from over, the writing is on the chalkboard. Lawyers and their clients should keep in mind these lessons on the sequencing of motions in class actions in Canada:

1. Increasingly, courts are placing emphasis on moving class actions through the legal system expeditiously, including by creating avenues to dismiss actions that lack merit before the parties and judicial system have to invest the resources needed to proceed through the certification process. Pre-certification motions should therefore be brought when they help to minimize the time and expense needed to determine the litigation.
2. Defence counsel may be more inclined to bring dispositive pre-certification motions. But much remains to be learned about how class counsel can and should respond. Class action judges and lawyers should monitor new developments and pay particular attention to what is most persuasive in advancing or opposing the sequencing of motions.
3. Jurisdiction matters. In Ontario, since 2020, the class actions regime has promoted the hearing of pre-certification motions. Likewise, in British Columbia, the Court of Appeal outright rejected the idea that certification motions are presumptively heard first, ahead of preliminary motions, and criticized cases in which the court presumed certification first as “wrongly decided”. But no pan-Canadian procedure or approach on this subject exists as of yet. Although most provinces allow pre-certification motions, some have limited the circumstances in which those motions can occur, and others have declined to adopt the explicit measures adopted elsewhere.