Class Actions: Saskatchewan Court of Appeal Brings “Order” to Sequencing of Dispositive Applications

The Saskatchewan Court of Appeal (Court) recently released its long-awaited decision about the sequencing of dispositive applications in class proceedings relative to certification applications. The Court confirmed that case management justices (CMJs) continue to have the discretion to determine the sequencing of those applications, even if the sequencing results in the class action being dismissed on the merits prior to certification.

Background

In 2016, the plaintiff in Hoedel v. WestJet Airlines Ltd. commenced a potential class proceeding against WestJet and Air Canada in which he alleged that WestJet and Air Canada had colluded when they introduced fees for first-checked bags in 2014. In 2018, WestJet and Air Canada filed their statements of defence and applications to summarily dismiss the proceeding. Approximately six months later, the plaintiff filed an application to certify the proceeding. WestJet and Air Canada then sought direction from the Court about which would be heard first — the applications to summarily dismiss or the application to certify. 

Sequencing Hearing

In 2021, the CMJ heard and determined the sequencing application and considered the following factors:

1. Is it likely that hearing the application in advance of certification will result in multiple rounds of proceedings through various levels of courts? Will the application require a substantial record and/or cross-examination on affidavits, thereby diverting attention on resources from certification?
2. Does the application address an issue that would be canvassed at a certification hearing in any event?
3. Will the Court have all the evidence necessary to decide the application?
4. Is it likely that the application will dispose of only some claims in the action against only some of the defendants?
5. Could the application eliminate all claims against defendants?
6. Has the plaintiff proceeded expeditiously to seek certification?
7. Is it more likely that scheduling the application to be heard after certification will promote efficiency in the circumstances?

The CMJ noted that while certification applications are often heard first, there is no bright-line rule (a clearly defined rule or standard) to that effect. Rather, CMJs have the discretion to hear dispositive applications first if doing so could bring an early end to unmeritorious litigation. After considering the factors above, particularly that (a) the applications to summarily dismiss could result in the dismissal of the entire claim and (b) the plaintiff can delay applying for certification, the CMJ concluded that the applications of WestJet and Air Canada to summarily dismiss the proceeding would be heard first. 

Appeal

On December 13, 2023, the Court noted that, “historically speaking,” certification applications are generally the first matter heard in any potential class proceeding. However, the Court accepted that there are “no hard edges to that approach” and that, in the appropriate case, it may be prudent to make preliminary rulings before certification. This is particularly the case if a preliminary ruling (a) would “clearly benefit all parties”, (b) would further judicial efficiency by narrowing the issues in dispute, (c) is time sensitive or (d) is necessary to ensure that the proceeding is conducted fairly. 

The Court observed that appellate courts in other Canadian jurisdictions have also adopted a discretionary approach to the sequencing of dispositive applications relative to certification applications. In particular, the Court noted that the appellate courts in British Columbia (British Columbia v. The Jean Coutu Group (PJC) Inc.) and Alberta (Ravvin v. Canada Bread Company) have also “categorically rejected the presumption that a certification motion must be the first procedural matter to be determined.”

The Court did note that while “summary judgment is the sort of application that sits uncomfortably in a class action context,” a court nevertheless retains the discretion to hear and determine all applications prior to certification, “including one addressing the merits of the claim.” Quoting an earlier decision of the Court of Queen’s Bench of Saskatchewan, the Court reinforced that the issue is not if the Court has the discretion to hear such applications, because it does, but rather “whether it should.”

Ultimately, the Court upheld the CMJ’s decision, agreeing that the CMJ was “laser-focussed on issues of efficiency, judicial economy, delay and whether, in her words (repeated here for emphasis), ‘it is worthwhile to undertake the risk of any inconsequential use of the court’s and the parties’ time if the WestJet and Air Canada Applications are ultimately unsuccessful’.”

Key Takeaways

Several takeaways emerge from the decision of the Court about sequencing:

• The discretionary approach to sequencing continues to be the preferred approach in several provinces, including Saskatchewan, British Columbia and Alberta.
• Pursuant to the discretionary approach to sequencing, the CMJ retains the discretion to sequence dispositive applications as appropriate, including before, after or together with the certification application.
• In the short term, disputes about sequencing may add to the length and complexity of potential class proceedings. However, the longer-term benefit of sequencing is the possibility of avoiding a costly and unnecessary certification application.
• Other provinces, particularly Ontario, have mandated by statute that applications that may dispose of the proceeding in whole or in part, or narrow the issues to be determined, shall be heard prior to certification unless the court orders otherwise. This approach may avoid the time and cost associated with sequencing applications, but time will tell if it results in more fairness or more efficiency relative to the discretionary approach over time. 

For more information, please contact:

or any other member of our Class Actions group.