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.