Who Goes First? Debate Over Class Action Sequencing Heats Up In British Columbia

Ontario's recently-amended Class Proceedings Act presumes that dispositive motions brought by a defendant will precede certification unless the court orders the motions to be heard together. British Columbia has no such provision. Instead, courts presume that certification should go first, but have discretion to direct that other applications should precede it. The list of factors the court will consider is expansive and expanding.

Sequencing applications-and appeals from the resulting decisions-have become increasingly frequent in BC. Despite the presumption that certification will go first, defendants have succeeded in various circumstances in having dispositive and other applications sequenced before certification. And at least twice within the past 12 months, the BC Court of Appeal has granted an unsuccessful defendant leave to appeal a sequencing decision.