"Order In The Court!": Judicial Discretion In Scheduling Applications Within Class Proceedings

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 certification.

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 another.¹

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