Filing Defences Prior to Certification: a More Nuanced Practice?
The common practice of deferring the filing of a statement of defence, in B.C. the Response to Civil Claim, in a proposed class action until after the action has been certified has again attracted judicial criticism.
In 2011 and 2012 respectively, Mr. Justice Perell of the Ontario Superior Court, criticized this practice in Pennyfeather v. Timminco Ltd., 2011 ONSC 4257 (CanLII) and Labourers' Pension Fund of Central and Eastern Canada (Trustees of) v. Sino-Forest Corp., 2012 ONSC 1924 (CanLII).
In January of 2015, Mr. Justice Myers of the British Columbia Supreme Court voiced his criticism of the practice in Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2015 BCSC 74. Mr. Justice Myers has noted there is no statutory or regulatory basis for this practice, and that courts have “come to allow the deferral as a matter of course, often simply based on an agreed schedule between the parties who adopt the ingrained practice”. However, Mr. Justice Myers sees no “legitimate purpose” in such a standard practice, including potential costs savings given what is at stake in most proposed class actions and the extensive investigation necessary to oppose certification. To the contrary, he sees the filing of a statement of defence as potentially assisting with clarifying the issues between the parties at certification. As such, he his stated view is that, in any given case, there “ought to be good reason” to defer filing a defence.
Consistent with the reasons of each of Mr. Justice Perell and Mr. Justice Myers on this issue, case management judges in a variety of proposed class actions in British Columbia over the past year have required that statements of defence be filed prior to the certification hearing. It remains to be seen whether this will become the new common practice.