Well, it’s finally official. In the very recent case of Pederson v Saskatchewan, 2016 SKCA 142, the Saskatchewan Court of Appeal changed course to align, with all the other common law jurisdiction in Canada, the test for whether the pleadings in a class action disclose a cause of action.

Since Hoffman et al v Monsanto, 2007 SKCA 47, 293 Sask R 89 [Hoffman], the Saskatchewan Court of Appeal ruled that the plaintiff in a putative class action needed to establish that the pleadings disclosed a “genuine or authentic” cause of action. This test contrasted with that used in all the other common law jurisdictions: whether it was “plain and obvious” that the cause of action pleaded could not succeed at law.

In the cases that came after Hoffman in Saskatchewan, the Court of Appeal, and the lower courts, continued to cite and apply the “genuine or authentic” threshold test. However, it was debatable whether the fundamental analysis in the cases was affected by the different test. Hoffman suggested that a more rigorous cause of action threshold was appropriate and necessary in the class action context, but no Saskatchewan case clearly articulated what a higher threshold entailed. In actuality, from the jurisprudence it was also unclear whether the higher threshold made any meaningful difference in the final outcome.

Indeed, in Schneider v Royal Gold Reserve Inc., 2012 SKQB 111, 392 Sask R 199, a case handed down over 5 years after Hoffman in the Court of Queen’s Bench, Laing J. candidly noted that it was an open question whether there was any difference between the two tests. On a number of occasions the Court of Appeal had opportunities to assist in developing the new test, but offered no guidance. Examples in this regard include Sorotski v CNH Global N.V. et al, 2007 SKCA 104, 304 Sask R 83, DJO Canada, Inc. v Schroeder, 2011 SKCA 106, 385 Sask R 44, and Microcell Communications Inc. v Frey, 2011 SKCA 136, 377 Sask R 156.

Then along came Pederson, a proposed class action against the province of Saskatchewan on behalf of child wards of the government. Initially, certification was denied in the Court of Queen’s Bench on the basis of expired limitation periods. In deciding this issue, the certification judge took into account his determination that no cause of action existed, which the Court of Appeal found to be an error. Despite the fact that the Court of Appeal overtly stated that the “genuine or authentic” cause of action issue did not matter to the merits of the appeal, it nevertheless decided it was time to end the threshold test cause of action anomaly in Saskatchewan. Ottenbreit J.A., for a unanimous panel, stated:

[64] In my view, the justification in Hoffman for the use of the authentic cause of action test no longer applies. Saskatchewan is now a “costs” jurisdiction. The plain and obvious test appears to not have caused any mischief when applied by courts in other provinces. It is a well-known test that is not difficult to apply. In my view, s. 6(1)(a) can continue to be an effective screening mechanism for class action claims even when the plain and obvious test is applied. In Pro-Sys, the Supreme Court of Canada very clearly has stated that the test applicable to a provision identical to s. 6(1)(a) of the CAA is the plain and obvious test. For all these reasons, the plain and obvious test is now preferable.

In our view, the alignment of Saskatchewan law with that of other common law jurisdictions in Canada will tend to simplify certification applications, by removing one potential point of distinction when Saskatchewan courts are asked to consider case law from other provinces.

Now, before Hoffman is consigned completely to the trash bin, an epilogue is appropriate. It may be worth pausing to observe that the justification offered in Hoffman for a different test was not limited to the inexistence of a costs regime in Saskatchewan at the time. Indeed, as the Court in Pederson observed, the “plain and obvious” test was applied in provinces that had costs regimes. It is worth remembering that in bringing an increased level of rigor to the cause of actions analysis, in many ways the Court in Hoffman was simply being more honest in its assessment of what courts, including the Supreme Court of Canada, were doing in their analysis of causes of action in a class actions context.

The Supreme Court of Canada has described the “obvious benefit” of an early determination of the cause of action issue, and has shown a willingness to consider novel claims in the context of applications to strike pleadings, notwithstanding its admonition that only in “clear and obvious” cases should claims be struck. Moreover, the Supreme Court of Canada has shifted our litigation culture through its recent embrace of other summary procedures, such as summary judgment. Litigants would therefore do well to not completely forget some of the insightful analysis in Hoffman in the context of both motions to strike and in the course of examining causes of action in a class action context.