Ontario And British Columbia Lead A Sequencing Culture Shift

For the past two decades, how best to achieve the fair and efficient management of class actions in Canada was routinely resolved by a one-size-fits-all approach: a presumption that certification should be the first motion heard in the case. Defendants seeking an exception to this general rule faced a heavy burden. As a result, defendants with strong positions on the merits were often locked into procedurally complex, financially burdensome litigation that, in many cases, took years to get through the certification stage.

The past two years have witnessed important developments affecting the sequencing of certification and other potentially dispositive motions in class actions. Those developments, mainly in Ontario and British Columbia, may signal a broader culture shift in Canada, away from the presumption that the certification motion should be heard first, and towards a more bespoke procedure designed for the case at hand.