In the latest round of Keatley Surveying v Teranet, a copyright
dispute between land surveyors and the manager of Ontario's
electronic land registry system, Justice Belobaba of the Ontario
Superior Court was asked to determine which of two motions for
summary judgment should proceed first: a defendant's
pre-certification motion or a plaintiff's post-certification
motion. The case is worth noting for any defendant considering
summary judgment in a potential class action: Unless there is good
reason to do otherwise, if a defendant wants to dismiss the claim
of a single plaintiff, it is generally better to seek summary
judgment before or at the time of the certification motion.
The defendant, Teranet Inc., filed a motion for summary judgment
to dismiss only the plaintiff's claim for copyright
infringement, shortly after the plaintiff filed a certification
motion. The original case management judge decided that the
certification motion should be heard first and adjourned the
defendant's motion for summary judgment. It is not clear why
the prior case management judge did not permit argument of the
defendant's motion at the same time as argument of the
certification motion. Indeed, Justice Belobaba notes in his
decision that recent case law has moved in favour of earlier
summary judgment motions. In any event, after seven common issues
were certified, the plaintiff joined the summary judgment party,
filing its own motion. The question ultimately became: Which of the
two motions for summary judgment should proceed first?
Four years after the initial certification, following appeals of
the certification decision, the sequencing of the competing summary
judgment motions fell to be determined by Justice Belobaba. In a
decision which is clearly driven by a desire for the most
expeditious and final resolution of the dispute, he ordered that
the plaintiff's motion proceed first, notwithstanding the fact
that the defence motion was filed first. Critically, he found that
the defendant's motion would only answer the issues posed by
the defendant, not the certified issues, and any order made in the
defendant's motion would only bind the plaintiff, not the class
as a whole. The plaintiff's motion, on the other hand, sought
judgment on all certified issues. As a result, hearing the
plaintiff's motion first was the best way of ensuring the
"just and expeditious determination" of the class
proceeding, since it could potentially determine all issues raised
in the proceeding at once.
The lesson to be taken from the decision is the potential
downside of filing a summary judgment motion, and then being unable
to pursue it until after certification. By that time, the
defendant's motion had arguably become superfluous. Counsel who
find themselves in that position may want to consider re-crafting
their summary judgment motion with an eye to the certified common
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