Certification Not Always First, Says Court Of Appeal For Saskatchewan

A recent Court of Appeal decision confirms that in Saskatchewan, as in most provinces, there is no longer a clear presumption that certification applications go first in class proceedings.

Courts have discretion to hear preliminary applications, including applications for summary judgment, before certification hearings where

1. doing so would clearly benefit all parties or further the objective of judicial efficiency by narrowing the issues;
2. the preliminary application is time sensitive; or
3. hearing the application first is necessary to ensure that the proceeding is conducted fairly.

This is similar to the approach to sequencing adopted by appellate courts in British Columbia¹ (see our previous blog post) and Alberta.²

In Hoedel v WestJet Airlines Ltd., 2023 SKCA 135, the plaintiff alleged that the defendant airlines colluded when they each introduced fees for checked bags in 2014, contrary to the Competition Act, RSC 1985, c C-34. Both defendants applied to dismiss the claim. The plaintiff later filed a certification application.

The case management judge concluded that the defendants' dismissal applications should be heard first. On appeal, the plaintiff argued that the certification application must be heard before any evidence-based dispositive application.

The Court of Appeal acknowledged that, historically, certification applications were generally the first application heard in a class action. However, Saskatchewan's Class Actions Act does not mandate a certification-first rule, and over the years, courts have recognized that it is sometimes appropriate to make a preliminary ruling before the certification hearing.³

The question is not if an application – including summary judgment – can be heard in advance of a certification hearing, but whether it should be.⁴ In making that determination, the court may consider a variety of factors related to delay, fairness, costs, promoting settlement, and judicial economy.⁵

In Hoedel, the judge found that three factors weighed in favour of hearing the dismissal applications first:

1. the plaintiff delayed in bringing the certification application;
2. the dismissal applications could dispose of the entire claim; and
3. hearing the dismissal applications first could relieve all parties and the court of the significant resources necessary to run a full certification hearing.

The Court of Appeal found no error in that analysis and confirmed that the dismissal applications would go first.⁶

Footnotes

1 See e.g. British Columbia v The Jean Coutu Group (PJC) Inc., 2021 BCCA 219 at para 37.

2 See e.g. Klassen v Canadian National Railway Company, 2023 ABCA 150 at para 18.

3 Hoedel v WestJet Airlines Ltd., 2023 SKCA 135 at paras 24, 28.

4 Hoedel v WestJet Airlines Ltd., 2023 SKCA 135 at para 37.

5 Hoedel v WestJet Airlines Ltd., 2023 SKCA 135 at para 35.

6 Hoedel v WestJet Airlines Ltd., 2023 SKCA 135 at para 58.

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