In Perez-Nana v Cargill Limited, 2022 ABQB 283, the Alberta Court of Queen's Bench considered a sequencing application. Guided by efficiency and fairness, the Court refused to hear the motion to strike the claim or portions thereof prior to the certification application, and ordered the applications be heard concurrently. The Court held that where it is unclear whether an applicant will be fully successful in its application to strike, the potential efficiencies of hearing the pre-certification motion to strike are outweighed by risks that the court process will be repeated at a certification hearing.

Background

The proposed class was comprised of a group of individuals who contracted COVID-19 in the spring of 2020, allegedly as a result of their contact with workers from the Cargill Limited facility in High River, Alberta. They alleged that Cargill was negligent in its handling of the COVID-19 pandemic in the plant, resulting in the plaintiffs’ COVID-19 infections via close contacts.

Cargill brought an application to have the claim, or portions thereof struck on the basis it owed no duty of care to the plaintiffs in advance of the certification application. The plaintiffs argued that the striking motion should be heard contemporaneously with the motion for certification. The Court agreed.

The Court's Decision

The Court dismissed Cargill's application and directed that the motion to strike be heard concurrently with the certification motion. In doing so, the Court considered the following factors:

  1. Overlap: the risk of inconsistent findings on related or identical issues, plus efficiencies of hearing the same issues argued together;
  2. Delay: delaying the litigation by running a pre-certification motion, with the possibility of an appeal;
  3. Efficiency: efficiencies gained by removing parties, minimizing issues, reducing the amount of evidence or promoting settlement; and
  4. Costs: costs to the parties incurred by arguing separate motions and participating in the certification hearing.

A driving consideration of the Court was its ability to adequately assess whether there was sufficient proximity between the potential class members and Cargill in the absence of evidence which would be filed as part of the certification record.

The Court held that without a better sense of whether Cargill's striking motion would be completely successful or unsuccessful, the potential efficiencies of hearing the motion to strike prior to the certification application were outweighed by risks that the process would be repeated at the certification hearing, and possibly impacted by decisions made on the striking motion when no evidence was yet available. The description of the possible class was wide, and there was a real possibility that some plaintiffs could have remained a part of the action if Cargill were not completely successful in its motion. If the application to strike was heard before the certification, the remaining plaintiffs would still have been subject to similar arguments at the certification motion and there was a risk that the Court would have fettered its discretion. Therefore, Cargill's application was dismissed, and the parties were directed to agree on a timeline for hearing the certification application.

When to Strike

Where a preliminary motion requires the Court to make factual findings, it is important to ensure that sufficient evidence is provided. In the absence of such evidence, it is likely that courts will direct that such applications be heard at the time of the certification application to avoid potential unfairness and inefficiencies.