When Is The Iron Hot? Pre-Certification Applications To Strike

An early application to strike or summarily dismiss a claim can be an effective and efficient first line of defence in some class proceedings. However, a defendant does not have the right to require motions to be heard before certification. So, when will a court permit potentially dispositive applications to be heard first? The recent Alberta Court of Queen's Bench decision in Carlson v Transalta Corporation, 2018 ABQB 343 ("Carlson") provides a useful summary of the factors the court will consider to determine whether summary disposition applications will be heard prior to certification, although the Court in that case ultimately determined that a pre-certification application was not appropriate.

As summarized in Carlson, the case management judge has the discretion to schedule potentially dispositive applications before certification. The court will consider a non-exhaustive list of factors with a view to achieving the foundational goals of class actions law: judicial economy, access to justice, efficiency and fairness.

Factors that militate toward hearing applications before certification include situations where:

the motion is likely to be successful; the motion would encourage settlement, substantially narrow the issues, or dispose of the entire claim; there may be "stigmatization" of the defendant if the claim continues; and, the issues are simple. Factors that militate toward hearing applications during or after certification include situations where:

the motion addresses matters that will be considered at certification; there is a high likelihood of appeal (and associated delay); the pre-certification steps will be expensive or cause delay; and, the motion has a low likelihood of success. Other potentially relevant factors include the interplay between the issues in the pre-certification application and the certification application; the complexity of evidentiary and legal issues in each application; the nature of the pre-certification application; and the pace of proceedings thus far. As an example, it may be appropriate to hear early applications by defendants asserting they are not properly parties to the litigation.

In Carlson, the Court weighed these factors and decided against allowing the defendants' application to strike the...