In the recent Grossman 1 decision, the Ontario Superior Court of Justice granted a scheduling motion brought by the defendant to a proposed class action, thereby allowing for early summary judgment before the plaintiff’s motion to certify the proceeding as a class action. The court’s decision is the latest in a growing trend in Ontario and across Canada to allow for more pre-certification motions.
Background
The sequencing of motions in Ontario class actions was previously governed by a set of common law factors known as the “Cannon Factors.”2 Similar to ordinary civil proceedings, the court simply resolved scheduling disputes with its broad jurisdiction under the Rules of Civil Procedure to make orders respecting the conduct of a proceeding or impose terms on the parties to ensure its “fair and expeditious determination.”
The Cannon Factors emerged to address the unique features of class actions and included, among other things, whether the motion would dispose of the proceeding or substantially narrow the issues, the likelihood of delays and costs associated with the motion, whether the outcome would promote settlement, whether the motion could lead to interlocutory appeals or other delays affecting certification, the interests of economy and judicial efficiency, and the fair and efficient determination of the proceeding. All other factors being equal, the Cannon Factors provided that motions to certify class proceedings should be heard first.
However, in 2020, the Ontario legislature amended the Class Proceedings Act, 1992 to introduce a variety of measures aimed at modernizing class action practice and procedure. These amendments included the introduction of s. 4.1 to the Act, which gave priority to certain pre-certification motions:
If, before the hearing of the motion for certification, a motion is made under the rules of court that may dispose of the proceeding in whole or in part, or narrow the issues to be determined or the evidence to be adduced in the proceeding, that motion shall be heard and disposed of before the motion for certification, unless the court orders that the two motions be heard together.
Prior to Grossman, only two other Ontario decisions, Dufault and Davis, interpreted the new section and considered its significance given the long history and well-entrenched case law of the Cannon Factors.
The Grossman decision
Keeping with Dufault and Davis, the court in Grossman emphasized that s. 4.1 creates a “strong presumption” for scheduling a motion that addresses the merits of a claim (such as a summary judgment motion) before a certification motion. Specifically, although a court has some discretion under s. 4.1 to hear the motions together, the role of the court “is clear” and it must schedule (and hear and dispose of) a pre-certification motion first if the pre-certification motion may dispose of the proceeding in whole or in part or narrow the issues to be determined or the evidence to be adduced in the proceeding.
In the face of this presumption, the plaintiff in Grossman argued the court had to consider the merits of a proposed summary judgment motion before deciding whether to schedule that motion. The court rejected this argument, holding that, aside from considering potential concerns of a delay tactic, the judge’s role on a scheduling motion is not to consider the merits of the class action or the defendant’s defence. Notably, the court did not reference the Cannon Factors or any of the related jurisprudence.
A trend across Canada
Grossman reflects a trend across the country. While there have not been equivalent statutory changes in other provinces, appellate case law in British Columbia and Saskatchewan,3 for example, indicates a softening of judicial attitudes toward pre-certification motions. Canadian courts are recognizing that resolving certain merit-based motions before certification can be in the interests of class action litigants as well as the justice system more broadly insofar as they free up scare judicial resources by weeding out proposed class actions that lack sufficient merit. As Justice Butler of the BC Court of Appeal explained:
The court’s discretion ought to be exercised in a manner that facilitates and achieves judicial efficiency and the timely resolution of the dispute. … I reject the proposition that there is a presumption that the certification motion ought to be the first procedural matter to be heard. The cases that have so held were, in my opinion, wrongly decided and should not be followed.4
While it remains to be settled what role, if any, the Cannon Factors will have in Ontario going forward, it is clear the new approach to class action sequencing will be marked by a “strong presumption” in favour of pre-certification motions that have the potential to resolve or even just narrow the issues in a class action.
The author would like to thank Sulayman Syed, law student, for his contribution to preparing this legal update.
