First Things First: Ontario Superior Court Confirms Presumptive Right To Pre-Certification Motions

• Published date: 22 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: Torys LLP
• Author: Ms Sarah E. Whitmore and Ally Lawrence

In Dufault v. Toronto Dominion Bank¹, the Ontario Superior Court confirmed for the first time that under new section 4.1 of the Class Proceedings Act (CPA), pre-certification motions that can dispose of the proceeding in whole or in part, or can narrow the issues or the evidence must be heard before certification subject to certain limited circumstances.

The enactment of section 4.1 marks a stark departure from the prior approach to the sequencing of class action motions in Ontario, which often resulted in courts refusing to permit such motions to be heard in advance of certification. In Dufault, the Court confirmed a legislative presumption in favour of pre-certification motions signaling an emphasis on procedural efficiency, speedier resolution of class actions, and the avoidance of costly certification motions where possible.

What you need to know

• Under section 4.1, defendants in proposed class proceedings have a presumptive right to have pre-certification motions that can arguably dispose of the proceeding in whole or in part, or can narrow the issues or the evidence, heard and decided before certification.
• Plaintiffs can displace a defendant's presumptive right by demonstrating that there is nonetheless an overarching and good reason for a pre-certification motion and the certification motion to be heard together.
• The Court in Dufault set out two "good reasons" for refusing a defendant's request for a pre-certification summary judgment motion:
• • the defendant's motion does not raise any genuinely arguable issues that can narrow or dispose of all or part of the litigation and appears to be a delay tactic; or
  • the defendant's motion does raise genuinely arguable issues that can narrow or dispose of all or part of the litigation but the existing or proposed dates for the certification motion and the summary judgment motion are sufficiently close that it makes sense to hear the motions together (i.e., where a certification record has been filed and the certification motion would be heard a few months later than the pre-certification motion).
• While section 4.1 creates a presumptive right to pre-certification motions, the Court in Dufault noted that the judicial discretion preserved in the provision may be interpreted more broadly by some judges.
• Under section 4.1, Ontario's approach now differs from the approach to pre-certification motion sequencing in other jurisdictions such as British Columbia, Alberta, Saskatchewan, Nova Scotia, and in the Federal...