Pre-Certification Motions In Class Actions: Are Courts Setting The Bar Too High For Early And Efficient Disposition?

As I have observed before, class actions are expensive for defendants and resource-intensive for the justice system. In order to try and minimize that expense, defendants typically want to dispose of class actions they face as early as possible. This has given rise to a body of case law that addresses the question of when defendants will be allowed to bring pre-certificate motions. As the recent decision of the Ontario Superior Court of Justice in Austin vBell Canada shows, defendants face a high threshold in persuading the court to allow such motions to precede certification.

By way of background, Austin v Bell Canada is a proposed class proceeding commenced in January 2018. The plaintiff claims that Bell Canada improperly calculated the rate of indexation of its pension plan, thereby allegedly depriving employees of their pension entitlements.

In advance of certification, Bell Canada's lawyers wrote to the Office for the Superintendent of Financial Institutions ("OSFI"), alerting OSFI to the allegations and suggesting that OSFI would be best positioned would be to resolve the matter. OSFI wrote back indicating that it would be prepared to review the matter, if requested.

The defendants then sought to bring a motion to stay the class proceeding in favour of a determination by OSFI. The defendants argued that such a motion should be heard and disposed of prior to certification. By contrast, the plaintiff took the position that this issue should be determined by the court as part of the argument on the certification.

The matter ultimately came before Justice Glustein for a determination as to when the defendants' motion to stay the class proceeding should be heard. Justice Glustein directed that the defendants' stay motion should be heard as part of the certification motion, rather than in advance.

Justice Glustein noted that sections 12 and 13 of the Class Proceedings Act gave him broad discretion to determine the appropriate procedure for the adjudication of the matter. In relying on an earlier decision of Justice Strathy (as he then was) in Cannon v Funds for Canada Foundation (2010 ONSC 146), Justice Glustein identified six factors for determining whether the court should exercise its discretion to hear a pre-certification motion:

(a) whether the motion will dispose of the entire proceeding or will substantially narrow the issues to be determined;

(b) the likelihood of delays and costs associated with the motion;

(c) whether the outcome...