The common practice of deferring the filing of a statement of
defence, in B.C. the Response to Civil Claim, in a proposed class
action until after the action has been certified has again
attracted judicial criticism.
In 2011 and 2012 respectively, Mr. Justice Perell of the Ontario
Superior Court, criticized this practice in Pennyfeather v.
Timminco Ltd., 2011 ONSC 4257 (CanLII) and Labourers'
Pension Fund of Central and Eastern Canada (Trustees of) v.
Sino-Forest Corp., 2012 ONSC 1924 (CanLII).
In January of 2015, Mr. Justice Myers of the British Columbia
Supreme Court voiced his criticism of the practice in Pro-Sys
Consultants Ltd. v. Microsoft Corporation, 2015 BCSC 74. Mr. Justice Myers has noted
there is no statutory or regulatory basis for this practice, and
that courts have "come to allow the deferral as a matter of
course, often simply based on an agreed schedule between the
parties who adopt the ingrained practice". However, Mr.
Justice Myers sees no "legitimate purpose" in such a
standard practice, including potential costs savings given what is
at stake in most proposed class actions and the extensive
investigation necessary to oppose certification. To the contrary,
he sees the filing of a statement of defence as potentially
assisting with clarifying the issues between the parties at
certification. As such, he his stated view is that, in any given
case, there "ought to be good reason" to defer filing a
Consistent with the reasons of each of Mr. Justice Perell and
Mr. Justice Myers on this issue, case management judges in a
variety of proposed class actions in British Columbia over the past
year have required that statements of defence be filed prior to the
certification hearing. It remains to be seen whether this will
become the new common practice.
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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