Class Actions In Canada: What To Expect In 2023

• Jurisdiction: Canada
• Law Firm: Torys LLP
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Privacy, Financial Services, Data Protection, Arbitration & Dispute Resolution, Class Actions
• Author: Ms Linda Plumpton, Sylvie Rodrigue, Sarah E. Whitmore, Matthew Angelus and Stefan Case
• Published date: 25 January 2023

There were several interesting developments in the Canadian class actions space in 2022. Below, we explore key takeaways from last year and what we expect from the courts in 2023 and beyond.

Timing of preliminary motions

Increased pre-certification motions in Ontario

In 2022, Ontario courts provided further guidance on permitting preliminary motions ahead of certification under section 4.1 of the Class Proceedings Act, 1992 (the Ontario Act). Section 4.1, a new provision enacted in the recent amendments to the Ontario Act, requires a motion to be heard before certification if it could dispose of the proceeding (in whole or in part) or narrow the issues or evidence, "unless the court orders that the two motions be heard together"¹.

We expect to see more pre-certification motions in Ontario following the court's interpretation of section 4.1 in the 2022 case Davis v. Desjardins Financial Services Firm Inc². Endorsing the analysis in Dufault v. Toronto Dominion Bank³, Davis confirms that section 4.1 creates a presumption in favour of pre-certification motions. We may also see defendants commence pre-certification motions earlier, to ensure that sequencing is determined before the certification motion is scheduled'a fact that the court in Davis suggested is important for maintaining the presumption that the preliminary motion be heard first. Finally, we may see more courts grant partial summary judgment motions in the pre-certification context. Although Ontario courts are often reluctant to grant partial summary judgment (as it only disposes of part of the litigation), the court in Davis emphasized that section 4.1 refers to pre-certification motions that could dispose of a proceeding in whole or in part. The fact that the defendants' summary judgment motion did not deal with all issues in that case did not prevent it from being heard before certification.

Potentially fewer pre-certification motions in other jurisdictions

We do not expect to see the same trend presumptively favouring pre-certification motions in other provinces⁷. Courts in other provinces have substantial discretion to determine the sequencing of motions in a class proceeding, which often leads them to consider a broader range of factors than those that Ontario courts have recently found relevant under section 4.1 of the Ontario Act. British Columbia and Alberta courts, while acknowledging that there is no presumption for certification to be heard first, used this more discretionary approach to deny hearing pre-certification motions in some cases last year⁵, so parties there may see a more varied approach to such motions. Further, the Federal Court reiterated that pre-certification motions should be permitted only in exceptional circumstances⁶. And the Saskatchewan courts generally endorse a "certification first, with exceptions" approach⁷. That said, the Saskatchewan Court of Appeal may soon provide additional guidance on pre-certification sequencing in Hoedel v. WestJet Airline Ltd., which was heard in November 2022. Hoedel will also give the court an opportunity to consider whether steps like document production and discovery must be completed before summary judgment is argued⁸. This would affect how these motions are sequenced in relation to certification. Additionally, Saskatchewan is undergoing a review of its class actions legislation in connection with potential reform. In the consultation report published by the Law Reform Commission of Saskatchewan, one question was whether the "certification first" rule should be reversed by adding a provision similar to section 4.1 of the Ontario...