Much hinges on the order in which applications are heard and
decided. A defendant in a prospective class action may save
considerable time and money if their motion for summary judgment is
determined prior to a plaintiff's application for
In Keatley Surveying v Teranet, the Ontario Superior Court
recently confirmed that scheduling applications is a matter of
judicial discretion in that there is no requirement that
applications must be heard in the order they are received or that
one type of application must always precede
The procedural story in Keatley began when the plaintiff filed a
certification motion. The defendant answered with a motion for
summary judgment. The case management judge heard the certification
motion first and adjourned the defendant's motion. Four years
later – after the Court of Appeal ultimately certified the
action – the defendant reintroduced its original summary
judgment motion. In response, the plaintiff filed its own motion
for summary judgment.
In the instant case, the judge considered which summary judgment
motion – the defendant's or the plaintiff's –
should be heard first. Justice Belobaba was persuaded to begin with
the plaintiff's motion (notwithstanding its later submission)
because, as a post-certification motion, it would be binding on the
whole class, not just the plaintiff, and would address all of the
common issues, not just those posed by the defendant four years
earlier. In Justice Belobaba's words, hearing the
plaintiff's motion first "makes more
In the context of class actions in Ontario, the guiding
principle for judges when scheduling decisions is what is
"fair and expeditious".3 The same is true in
Alberta. In WP v Alberta, a case in which the Court of Appeal
considered whether the chambers judge was correct to hear a summary
judgment application before a certification application, the court
noted, "[Alberta's Class Proceedings Act] does not
preclude a judge from exercising his or her discretion to hear and
decide a summary judgment application prior to certification on the
basis that it is an efficient and cost-effective way of disposing
of an issue that might bring an end to the litigation
Defendants should read "judicial discretion" to mean
"opportunity." Keatley provides an example of a missed
opportunity. Rather than reintroducing an old application, the
defendant may have been better served to file a new application,
updated to reflect the class and issues as certified.
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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