Much hinges on the order in which applications are heard and decided. A defendant in a prospective class action may save considerable time and money if their motion for summary judgment is determined prior to a plaintiff’s application for certification.

In Keatley Surveying v Teranet, the Ontario Superior Court recently confirmed that scheduling applications is a matter of judicial discretion in that there is no requirement that applications must be heard in the order they are received or that one type of application must always precede another.[1]

The procedural story in Keatley began when the plaintiff filed a certification motion. The defendant answered with a motion for summary judgment. The case management judge heard the certification motion first and adjourned the defendant’s motion. Four years later – after the Court of Appeal ultimately certified the action – the defendant reintroduced its original summary judgment motion. In response, the plaintiff filed its own motion for summary judgment.

In the instant case, the judge considered which summary judgment motion – the defendant’s or the plaintiff’s – should be heard first. Justice Belobaba was persuaded to begin with the plaintiff’s motion (notwithstanding its later submission) because, as a post-certification motion, it would be binding on the whole class, not just the plaintiff, and would address all of the common issues, not just those posed by the defendant four years earlier. In Justice Belobaba’s words, hearing the plaintiff’s motion first “makes more sense.”[2]

In the context of class actions in Ontario, the guiding principle for judges when scheduling decisions is what is “fair and expeditious”.[3] The same is true in Alberta. In WP v Alberta, a case in which the Court of Appeal considered whether the chambers judge was correct to hear a summary judgment application before a certification application, the court noted, “[Alberta’s Class Proceedings Act] does not preclude a judge from exercising his or her discretion to hear and decide a summary judgment application prior to certification on the basis that it is an efficient and cost-effective way of disposing of an issue that might bring an end to the litigation altogether.”[4]

Defendants should read “judicial discretion” to mean “opportunity.” Keatley provides an example of a missed opportunity. Rather than reintroducing an old application, the defendant may have been better served to file a new application, updated to reflect the class and issues as certified.