In routine commercial litigation, a defendant's first line of defence when faced with an unmeritorious claim is often an application to either strike portions of the plaintiff's claim or to dismiss the claim in its entirety for showing no cause of action. When the claim is a class action, the question often becomes one of timing: should the application be made before the certification hearing or concurrently with it? While judicial economy would suggest that any such application precede the more expensive and time consuming certification hearing, the answer in BC courts seems to be that defendants will often be forced to defend the case at the certification stage.

In the recent decision of Merlo v Canada (Attorney General),1 the plaintiff's proposed class action concerned allegations that certain female members of the Royal Canadian Mounted Police were subjected to gender based harassment and discrimination. The Attorney General of Canada moved to strike various paragraphs in the plaintiff's Notice of Civil Claim. The case management judge was asked to consider the timing of the application and whether it should precede the application for certification. In refusing to allow the defendant's application to proceed in advance of the certification hearing, the court noted that its discretion regarding the sequencing of the competing applications would be guided by six factors:

  1. whether the motion would dispose of the entire proceeding or substantially narrow the issues to be determined; 
  2. the likelihood of delays and the costs of the motion; 
  3. whether the outcome of the motion would promote settlement; 
  4. whether the motion could give rise to interlocutory appeals and delays affecting the certification; 
  5. the interest of judicial efficiency and economy; and 
  6. whether the scheduling of the motion in advance of certification would promote the "fair and efficient determination" of the proceeding. - See more at: http://www.mcmillan.ca/successful-applications-to-strike-class-proceedings-before-certification-hearing-remain-rare#sthash.2JMeudQj.dpuf

The court highlighted that the motion to strike focussed on several claims in the pleadings which would be subject to virtually the same analysis under section 4(1)(a) of the British Columbia Class Proceedings Act2 regarding whether the pleadings disclosed a cause of action. Additionally, the court anticipated that an appeal following the outcome of the motion to strike would be very likely and would lead to delays and additional costs. The court also considered the fact that holding one hearing was more efficient than two separate hearings.

After weighing the factors in favour of advancing to the certification stage, the court imposed a schedule on the parties that would result in the certification hearing and the application to strike being determined at the same time.

Given that the issues before the court on certification include myriad other factors unrelated to whether the pleadings disclose a cause of action, the result in Merlo reaffirms that although pending class actions are "regular" cases until certification, defendants facing class proceedings may be unable to utilize the full extent of the Supreme Court Civil Rules to defend against unmeritorious claims as swiftly or in the same manner as "regular" litigants. Procedural attacks made early in class proceedings will continue to receive lukewarm reception from the court and succeeding on these applications early in the proceedings will remain a challenge for defendants.

Co-authored by Andrew Guerra, articled student