Pre-Certification Summary Judgment Motions in Class Actions

In October 2020, the Class Proceedings Act, 1992 was amended to provide for an early resolution of issues. Section 4.1 of the Act states:

4.1 If, before the hearing of the motion for certification, a motion is made under the rules of court that may dispose of the proceeding in whole or in part, or narrow the issues to be determined or the evidence to be adduced in the proceeding, that motion shall be heard and disposed of before the motion for certification, unless the court orders that the two motions be heard together.

In Dufault v. Toronto Dominion Bank, 2021 ONSC 6223, Justice Belobaba noted that a defendant now has a presumptive right to have certain motions, including summary judgment motions, heard and decided before the plaintiff’s motion for certification. However, a plaintiff can rebut this presumption by demonstrating an overarching and good reason for the two motions to be heard together.

Justice Belobaba outlined two circumstances for denying a defendant’s request for a pre-certification summary judgment motion:

• the defendant’s motion does not raise any genuinely arguable issues that can narrow or dispose of all or part of the litigation and appears to be a delay tactic; or
• the defendant’s motion does raise genuinely arguable issues that can narrow or dispose of all or part of the litigation but the existing or proposed dates for the certification motion and the summary judgment motion are sufficiently close that it makes sense to hear the two motions together.

However, overall, Justice Belobaba described section 4.1 of the Act as “a strong legislative signal that early motions by the defendant that can indeed narrow or dispose of a case before certification should presumptively be heard before certification”. His Honour does not believe that judges have an “unbounded discretion” to deny a defendant’s request for a pre-certification motion.