Canada: The Second Opinion: Class Actions, Constitutional Questions And Determining The "Preferable Proceeding"

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

In Precision Contractors Ltd v Government of Saskatchewan, 2013 SKCA 57, the Court of Appeal found that a common issue of constitutional validity did not, in and of itself, make a class action not the "preferable proceeding".

The Court of Appeal held that there was no absolute rule that a class action was perforce ill-suited to a claim for a declaration that a provincial taxing enactment was unconstitutional. In addition, the Court of Appeal noted the certification judge's next step, bifurcating the proceedings by conditionally adjourning the certification application pending the determination of the constitutional issue in a separate declaratory proceeding outside the framework of The Class Actions Act, SS 2001, c C-12.01 (the "Act"), would create procedural and substantive inequities.


Precision Contractors Ltd. ("PC") applied to have a proposed action certified as a class action pursuant to the Act.  At issue was the constitutional validity of provincial legislation and/or regulations imposing provincial sales tax on construction vehicles and equipment brought into Saskatchewan from Alberta for temporary use in PC's business.

The certification judge identified three common issues, the first of which was whether sections of the Provincial Sales Tax Regulations, RRS c E-3 Reg 1 ultra vires the legislative or regulatory powers of the Province of Saskatchewan.

The Act sets out five requirements that must be met in order for a class action to be certified. The certification judge ruled that the first three requirements for class certification were met, but then found that a class action was not the preferable procedure—the fourth requirement for certification—for addressing the constitutional validity of the legislation.

In coming to this conclusion, the certification judge relied upon the decisions from the Supreme Court of Canada in Guimond v. Québec (Attorney General), 1996 CanLII 175 (SCC), and Marcotte v. Longueuil (City), 2009 SCC 43 in holding that it was "generally undesirable" to pursue a class action to obtain a declaration of constitutional validity.

As a result, the certification judge reasoned that PC should commence a judicial review application to determine the constitutional issue with leave to bring the certification application back after the constitutional question had been determined so the remaining common issues could potentially be certified.


The Court of Appeal found that the certification judge had erred in his reading of Guimond. While acknowledging that the Supreme Court had said that " is not necessary to pursue a class action to obtain a declaration of constitutional invalidity and therefore, that it is generally undesirable to do so...", the Court of Appeal noted that this was said in obiter dictum. The Court of Appeal held that Guimond could not be viewed as unequivocally standing for the general proposition that class actions as such are perforce ill-suited to the resolution of litigation seeking a declaration that an enactment is unconstitutional.

The Court of Appeal also reviewed the certification judge's analysis of the Supreme Court's decision in Marcotte, a case dealing with an allegation that a municipal property tax by-law was ultra vires the enabling legislation. In Québec, a class action procedure is not available to challenge the validity of a municipal by-law. The reason for this is that a declaration of nullity obtained by an individual ratepayer in an individual proceeding is binding on all ratepayers.

The plaintiffs in Marcotte appealed to the Supreme Court of Canada. Five members of the Court were of the opinion the appeal should be dismissed, whereas four were of the view it should be allowed. The Court of Appeal, noting that the case was of "considerable complexity", held that much of the decision was tied into the Québec Code of Civil Procedure and held that it was of limited application in Saskatchewan.

However, the Court of Appeal felt that Marcotte had some instructive value and found, contrary to the view of the certification judge, that it did not support the notion that a class action in and of itself was unsuited to a claim for a declaration declaring a provincial taxing enactment to be unconstitutional.

After determining that a class action was not the preferable procedure, the certification judge did not dismiss the certification application but rather adjourned the certification motion until the constitutional question had been addressed with leave to bring it back to address the remaining issues.

The Court of Appeal found that this was not appropriate for a number of reasons.  The bifurcation of the proceedings would likely increase costs and require more by the way of judicial resources than by having all three common issues determined and dealt with at the same time and in the same process.  A common proceeding would also ensure that all class members are treated fairly and have adequate notice of all aspects of the litigation.  It would also treat PC fairly and not require it to launch a separate proceeding outside the framework of the Act that would expose it to costs.

As a result, the appeal was allowed although the Court of Appeal declined the appellant's request to certify the class action in that court. The case was remitted to the certification judge to conclude the certification hearing.

To view original article, please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions