“Order in the Court!”: Judicial Discretion in Scheduling Applications within Class Proceedings

Much can hinge 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.

This February, in Keatley Surveying v Teranet, the Ontario Superior Court 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]

Keatley involved a dispute between Teranet Inc., a private company that manages Ontario’s electronic land registry system, and 350 land surveyors who alleged that Teranet was in breach of copyright by copying and selling their plans of survey online.[2] The matter was resolved this May when Teranet’s motion for summary judgment was granted and the class action was dismissed.[3] The Court held that there was no copyright infringement by Teranet because copyright in the plans of survey belongs to the province of Ontario, not private land surveyors. The Court determined, citing provincial statutes, that property in the plans of survey, including copyright, is transferred to the province when the plans of survey are registered or deposited at the land registry office.[4]

The procedural story in Keatley began in 2012 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 February decision, 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 post-certification 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.”[5]

In the context of class actions in Ontario, the guiding principle for judges when scheduling decisions is what is “fair and expeditious”.[6]  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.”[7]

Defendants should consider the guiding principle of what is “fair and expeditious” as an opportunity  to advance arguments about efficiency and cost to support why it “makes more sense” to hear their motion for summary judgment prior to a plaintiff’s motion.

Ultimately, in Keatley, Teranet’s motion for summary judgment succeeded. Teranet’s motion was heard after the plaintiff’s motion, but the Court granted summary judgment to Teranet. Even so, judicial discretion in scheduling applications represents a potential opportunity for defendants to resolve the underlying litigation in a more cost-effective, timely way.

[1] Keatley Surveying v Teranet, 2016 ONSC 1139.

[2] Keatley Surveying v Teranet, 2016 ONSC 1717 at para 4.

[3] Ibid at para 59.

[4] Ibid at paras 38 – 43.

[5] Keatley, supra note 1, at para 11.

[6] Class Proceedings Act, 1992, SO 1992, c 6, s 12.

[7] WP v Alberta, 2014 ABCA 404 at para 20. The act referred to in this quotation is the Class Proceedings Act, SA 2003, c C-16.5.



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