Who Goes First? Debate Over Class Action Sequencing Heats Up In British Columbia

• Published date: 25 May 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Class Actions Monitor, Katherine A. Booth and Patrick Williams

Ontario's recently-amended Class Proceedings Act presumes that dispositive motions brought by a defendant will precede certification unless the court orders the motions to be heard together. British Columbia has no such provision. Instead, courts presume that certification should go first, but have discretion to direct that other applications should precede it. The list of factors the court will consider is expansive and expanding.

Sequencing applications-and appeals from the resulting decisions-have become increasingly frequent in BC. Despite the presumption that certification will go first, defendants have succeeded in various circumstances in having dispositive and other applications sequenced before certification. And at least twice within the past 12 months, the BC Court of Appeal has granted an unsuccessful defendant leave to appeal a sequencing decision.

The ongoing debate over how class proceedings should be sequenced is illustrated by two recent decisions of Madam Justice Francis of the BC Supreme Court in different cases involving the same defendant, and two recent decisions of the BC Court of Appeal granting defendants leave to appeal sequencing orders.

Same Judge, Same Defendant, Different Results

In April 2021, Justice Francis released two sequencing decisions in different proposed privacy class actions brought against LinkedIn. In one, the court allowed the defendant's summary trial application to precede certification. In the other, the court found that the defendant's summary trial application should proceed concurrently with certification. The court's reasons in these decisions are illustrative of the ongoing debate over the sequencing of pre-certification applications.

In Schmidt v. LinkedIn Corporation, 2021 BCSC 739, Justice Francis allowed LinkedIn's summary trial application to precede certification. The plaintiff sued under privacy legislation. He alleged the defendant's app continually accessed users' devices' clipboards, where copied information is stored before it's pasted elsewhere, without users' consent. The defendant argued the plaintiff's claim was based on mistaken facts. It conceded its app accessed users' clipboards in the course of the app's operation, but argued there was and could be no breach of privacy because the defendant did not read, store, or transmit any clipboard information.

The court concluded "it simply does not make sense to put the parties to the expense of a certification hearing" if "the defendant's...