In routine commercial litigation, a defendant's first line
of defence when faced with an unmeritorious claim is often an
application to either strike portions of the plaintiff's claim
or to dismiss the claim in its entirety for showing no cause of
action. When the claim is a class action, the question often
becomes one of timing: should the application be made before the
certification hearing or concurrently with it? While judicial
economy would suggest that any such application precede the more
expensive and time consuming certification hearing, the answer in
BC courts seems to be that defendants will often be forced to
defend the case at the certification stage.
In the recent decision of Merlo v Canada (Attorney
General),1 the plaintiff's proposed class
action concerned allegations that certain female members of the
Royal Canadian Mounted Police were subjected to gender based
harassment and discrimination. The Attorney General of Canada moved
to strike various paragraphs in the plaintiff's Notice of Civil
Claim. The case management judge was asked to consider the timing
of the application and whether it should precede the application
for certification. In refusing to allow the defendant's
application to proceed in advance of the certification hearing, the
court noted that its discretion regarding the sequencing of the
competing applications would be guided by six factors:
a) whether the motion would dispose of the entire proceeding or
substantially narrow the issues to be determined;
b) the likelihood of delays and the costs of the motion;
c) whether the outcome of the motion would promote
d) whether the motion could give rise to interlocutory appeals and
delays affecting the certification;
e) the interest of judicial efficiency and economy; and
f) whether the scheduling of the motion in advance of certification
would promote the "fair and efficient determination" of
The court highlighted that the motion to strike focussed on
several claims in the pleadings which would be subject to virtually
the same analysis under section 4(1)(a) of the British Columbia Class Proceedings Act2 regarding whether
the pleadings disclosed a cause of action. Additionally, the court
anticipated that an appeal following the outcome of the motion to
strike would be very likely and would lead to delays and additional
costs. The court also considered the fact that holding one hearing
was more efficient than two separate hearings.
After weighing the factors in favour of advancing to the
certification stage, the court imposed a schedule on the parties
that would result in the certification hearing and the application
to strike being determined at the same time.
Given that the issues before the court on certification include
myriad other factors unrelated to whether the pleadings disclose a
cause of action, the result in Merlo reaffirms that although
pending class actions are "regular" cases until
certification, defendants facing class proceedings may be unable to
utilize the full extent of the Supreme Court Civil Rules to defend against
unmeritorious claims as swiftly or in the same manner as
"regular" litigants. Procedural attacks made early in
class proceedings will continue to receive lukewarm reception from
the court and succeeding on these applications early in the
proceedings will remain a challenge for defendants.
1 2013 BCSC 1136
2 RSBC 1996 c 50
3 BC Reg 168/2009
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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