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British Columbia Sequencing Update

In June, we summarized British Columbia v. The Jean Coutu Group (PJC) Inc., 2021 BCCA 219, where the B.C. Court of Appeal made significant changes to the principles governing pre-certification sequencing applications.

Two recent decisions show how the B.C. Supreme Court has applied Jean Coutu. They demonstrate that courts will be willing to sequence dispositive motions before certification where the applications raise largely legal issues that will narrow the scope of the action.

Aura Ventures Corp. v Vancouver (City), 2021 BCSC 1568

The plaintiff alleged that the City of Vancouver held a large parking lot in trust for a proposed class of nearby property owners. The City planned to redevelop it for social housing. The City acquired the parking lot in 1964 and taxed the proposed class members to pay for its acquisition, construction, and maintenance. The plaintiff argued that the City was a trustee for the benefit of the proposed class.

The City wanted to bring a summary trial application before certification to determine whether a trust existed. The City argued that resolving the trust issue would dispose of the entire case or at least substantially narrow the issues. The plaintiff opposed sequencing the summary trial before certification for a variety of reasons including the following:

  1. the summary trial would not resolve other claims that the plaintiff had pleaded and intended to plead;
  2. a summary trial would cause the plaintiff to bring other applications (g., for pre-certification notice to the proposed class and pre-certification discovery of the City).
  3. the summary trial application would not bind the proposed class;
  4. the City could raise its arguments at the certification hearing; and
  5. the plaintiff was pursuing collective rights (comparable to an Aboriginal right) not individual rights like in most class actions.

The court rejected all those arguments and sequenced the summary trial before certification. The summary trial raised an issue that was at least largely a legal question and would significantly narrow the issues for trial (if not dispose of them completely). Further, the summary trial would promote settlement and the City had a legitimate reason for the application (the development of social housing); it was not seeking to delay certification for the sake of delay. The City also said it would defer any appeal, waive its costs, and facilitate discovery.

Elsser v. University of Victoria, 2021 BCSC 1579

The plaintiff wanted to represent a class of people who purchased parking passes from the University of Victoria for a period from March to August 2020. The University did not issue refunds for the parking passes when it closed because of the COVID-19 pandemic. The plaintiff argued that the parking contract was frustrated and the proposed class should have been reimbursed.

The University wanted to apply for summary judgment dismissing the claim before certification. The University argued that the claim was barred by the University Act, the Public Health Act, and the Emergency Programs Act. The plaintiff wanted to have the summary judgment application heard with the certification application because the evidence would overlap, among other reasons.

The court sequenced the University’s application first. The court found it raised a discrete legal issue that was separate from the certification hearing and there would be limited evidentiary overlaps. Further, the University was ready to bring the summary judgment application while the plaintiff had not filed a certification record. The summary judgment application would significantly narrow the issues and it would be unfair to force the University to respond to certification if the claim was statute-barred.



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