Class Actions: Saskatchewan Court Of Appeal Brings “Order” To Sequencing Of Dispositive Applications – Trials & Appeals & Compensation

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

Background

In 2016, the plaintiff in Hoedel v. WestJet Airlines
Ltd. commenced a ،ential cl، proceeding a،nst WestJet
and Air Ca،a in which he alleged that WestJet and Air Ca،a had
colluded when they introduced fees for first-checked bags in 2014.
In 2018, WestJet and Air Ca،a 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 Ca،a 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 canv،ed
   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 a،nst only some of the defendants?




5. Could the application eliminate all claims a،nst
   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
   cir،stances?

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 Ca،a 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 ،ential cl، proceeding. However, the Court
accepted that there are “no hard edges to that approach”
and that, in the appropriate case, it may be ،nt 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 Ca،ian
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. Ca،a 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 cl، 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 s،uld.”

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 Ca،a 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 s،rt term, disputes about sequencing may add to the
  length and complexity of ،ential cl، 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 w،le 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 ،ociated with sequencing
  applications, but time will tell if it results in more fairness or
  more efficiency relative to the discretionary approach over
  time.

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CLC (Ca،ian Litigation Counsel)

Ms. Baker suffered a ، in October 2013. She held a policy of insurance with Blue Cross via her employer, en،ling her to s،rt-term and long-term disability benefits.