In the latest round of Keatley Surveying v Teranet, a copyright dispute between land surveyors and the manager of Ontario’s electronic land registry system, Justice Belobaba of the Ontario Superior Court was asked to determine which of two motions for summary judgment should proceed first: a defendant’s pre-certification motion or a plaintiff’s post-certification motion. The case is worth noting for any defendant considering summary judgment in a potential class action: Unless there is good reason to do otherwise, if a defendant wants to dismiss the claim of a single plaintiff, it is generally better to seek summary judgment before or at the time of the certification motion.

The defendant, Teranet Inc., filed a motion for summary judgment to dismiss only the plaintiff’s claim for copyright infringement, shortly after the plaintiff filed a certification motion. The original case management judge decided that the certification motion should be heard first and adjourned the defendant’s motion for summary judgment. It is not clear why the prior case management judge did not permit argument of the defendant’s motion at the same time as argument of the certification motion. Indeed, Justice Belobaba notes in his decision that recent case law has moved in favour of earlier summary judgment motions. In any event, after seven common issues were certified, the plaintiff joined the summary judgment party, filing its own motion. The question ultimately became: Which of the two motions for summary judgment should proceed first?

Four years after the initial certification, following appeals of the certification decision, the sequencing of the competing summary judgment motions fell to be determined by Justice Belobaba. In a decision which is clearly driven by a desire for the most expeditious and final resolution of the dispute, he ordered that the plaintiff’s motion proceed first, notwithstanding the fact that the defence motion was filed first. Critically, he found that the defendant’s motion would only answer the issues posed by the defendant, not the certified issues, and any order made in the defendant’s motion would only bind the plaintiff, not the class as a whole. The plaintiff’s motion, on the other hand, sought judgment on all certified issues. As a result, hearing the plaintiff’s motion first was the best way of ensuring the “just and expeditious determination” of the class proceeding, since it could potentially determine all issues raised in the proceeding at once.

The lesson to be taken from the decision is the potential downside of filing a summary judgment motion, and then being unable to pursue it until after certification. By that time, the defendant’s motion had arguably become superfluous. Counsel who find themselves in that position may want to consider re-crafting their summary judgment motion with an eye to the certified common issues.