Date: 20080317
Docket: T-1943-06
Citation: 2008 FC 353
BETWEEN:
BERNARD VINCENT CAMPBELL,
SHARLE EDWARD WIDENMAIER,
LENARD ROY LINK, and WILLIAM A. HEIDT
Plaintiffs
and
THE ATTORNEY GENERAL OF CANADA and
THE MINISTER OF NATIONAL DEFENCE
Defendants
REASONS FOR
ORDER
HANSEN J.
[1] The within proceeding is
a proposed class action. These Reasons arise from a dispute between the
parties regarding the scheduling of the Plaintiffs’ certification motion and
the Defendants’ motion to strike the Plaintiffs’ Amended Statement of Claim. A
brief account of the relevant procedural history provides a backdrop for the
current dispute.
[2] Early in the proceeding,
the case management Prothonotary suspended the requirement to serve and file a statement
of defence. The Defendants filed a motion to strike the Statement of Claim and
to stay the whole or any part of
the Statement of Claim not struck. The Defendants’ motion and the
Plaintiffs’ certification motion were initially scheduled for hearing at the
same sitting on December 10-13, 2007 (later moved to December 11-14, 2007).
Prior to the hearing, in response to an earlier concern raised by the
Defendants and no position having been taken by the Plaintiffs, the Court
directed that the motion to strike would be heard first.
[3] At the start of the
December hearing, the Plaintiffs’ counsel made submissions regarding the order
in which the submissions on the two motions should be made. He took the
position that he was not opposed to the Defendants proceeding with their
submissions on their motion to strike, however, he argued that he should be
permitted to make combined submissions on the motion to strike and the certification
motion followed by the Defendants’ response to the certification motion and the
Plaintiff’s submissions on the motion to strike. Plaintiffs’ counsel was of
the view that given the overlap in the issues between the two motions this
approach would avoid unnecessary repetition.
[4] Counsel for the
Defendants strongly opposed this approach on the basis that, having indicated
earlier that they would not be filing evidence on the motion to strike, it was
an attempt by the Plaintiffs in their submissions on the motion to strike to
rely on the evidence they had filed on the certification motion. I directed
that the motion to strike would be heard in its entirety before the
certification motion.
[5] Once the motion to
strike had been completed, it became evident there was insufficient time to
complete the certification motion. On January 3, 2008, after canvassing the
availability of all counsel, I directed that the certification motion would be
heard February 19-22, 2008. Subsequently, the Plaintiffs filed an Amended
Statement of Claim. After hearing submissions from the parties, I concluded
that the motion to strike had been rendered moot and dismissed the motion.
[6] In mid-February, the
Defendants filed a motion to strike the Amended Statement of Claim and to stay
the whole or any part of the Statement of Claim not struck and for directions
fixing a schedule for the steps leading up to and the hearing of the motion to
strike. They also filed a motion for an adjournment of their reply to the
certification motion; the fixing of a schedule for the filing of supplemental
affidavit evidence, for the further cross-examination of the Plaintiffs and to
serve and file supplemental written submissions in relation to the Plaintiffs’
certification motion. The Defendants also requested directions regarding the
evidence each party could reply upon for the motion to strike and the certification
motion. The Defendants sought additional orders that are not relevant for the
purpose of these reasons.
[7] On February 19, 2008,
after hearing submissions from the parties, I granted the adjournment request,
allowed the Defendants to file new affidavits in response to the certification
motion and to conduct further cross-examination on the Plaintiffs’ affidavits
filed on the certification motion on matters arising from the amendments in the
Amended Statement of Claim. We then met to establish a proposed schedule for
the completion of the various steps for the motion to strike and the certification
motion and to determine available dates for the hearing of these motions.
[8] Based on the proposed
schedule prepared by the parties, the Court indicated that the motion to strike
could be heard the week of June 16, 2008 and the certification motion could be
heard the first week of September.
[9] At this juncture,
counsel for the Plaintiffs objected to the motion to strike being heard first.
I granted the Plaintiffs an adjournment to the following morning to make
further submissions and to give the Defendants an opportunity to respond.
[10] The Plaintiffs submit
that the certification motion should be heard and determined prior to the
motion to strike. Alternatively, they submit that the two motions ought to be
heard together. It should be noted that their position goes beyond simply
scheduling the two motions to be heard in succession at the same sitting. They
submit that the Plaintiffs’ submissions on the certification motion and their
submissions on the motion to strike should be heard together and prior to the
Defendants’ submissions on their motion to strike and the certification motion.
[11] In support of their
first position, the Plaintiffs rely on the decisions in Hoofman v. Monsanto
Canada Inc., 2002 SKCA 120, 220 D.L.R. (4th) 542 (Monsanto); Attis
v. Canada (Minister of Health) 2005, 75 O.R. (3d) 302, [2005] O.J. No. 1337
(Attis); Baxter v. Canada (Attorney General), [2005] O.J. No.
2165 (Baxter); Stewart v. General Motors of Canada Ltd., [2007]
O.J. No. 2319 (Stewart). As to their alternative position, the
Plaintiffs rely on Carom v. Bre-X Minerals Ltd., [1998] O.J. No. 1428 (Carom);
Chadha v. Bayer Inc., 45 O.R. (3rd) 29, [1999] O. J. No. 2497 (Chadha);
Pearson v. Inco Ltd., [2002] O. J. No. 2764 (Pearson); and Direnfeld
v. National Trust, [2001] O.J. No. 1706 (Direnfeld).
[12] The Defendants submit
that since the motion to strike may be dispositive of the action or may narrow
the issues on the certification motion, it should be heard first.
[13] There are no rules in
the Federal Courts Rules, SOR/98-106 regulating the order in which
certification and other motions, such as, motions to strike out pleadings must
be heard and determined. Rule 221 governing the striking out of pleadings
provides that such a motion may be brought at any time. Rule 334.11 provides
that the rules applicable to actions and applications, except to the extent
that they are incompatible, apply to class proceedings.
[14] Although there is an
overlap between the ground upon which a pleading may be struck under Rule
221(a) and the requirement in Rule 334.16(1)(a) for certification, namely,
reasonable cause of action, this alone does not create an incompatibility
rendering Rule 221 inapplicable to class proceedings. As Prothonotary Aalto
stated in Pearson v. Canada (Minister of Justice), [2008] F.C.J. No. 73,
at paragraph 23, to conclude that a proposed class action could not be subject
to a motion to strike until the certification motion has been determined would
“… undermine the ability of the Court to control its process and strike out
proceedings that do not meet the requirements of pleading a proper cause of
action or striking abusive, or frivolous and vexatious proceedings.”
[15] The question remains,
however, whether as a matter of principle a certification motion should be
decided before a motion to strike.
[16] In general, Canadian
courts have consistently concluded that having regard to the purpose and
objectives of class proceedings and the requirement that a certification motion
must be brought very early in the proceeding, the certification motion should
take precedence over other preliminary motions.
[17] In Monsanto, at
paragraph 18, the Saskatchewan Court of Appeal observed that the objectives of
the class action procedure include “… economies of time, effort and expense, as
well as uniformity of decision for persons similarly situated.” As well, “The modern
class action is designed to avoid, rather than encourage, the unnecessary
filing or repetitious papers and motions.” At paragraphs 28 and 29 the Court
stated:
In this case the timely
determination of the certification application will advance the litigation
without generating unnecessary motions and applications. If one of the
purposes of the modern class action is designed to avoid, rather than encourage
unnecessary filling of repetitious papers and motions, it is in the interest of
all parties to have the “appropriateness of the class action determined at the
outset by certification”: See Dutton, supra at p. 552, paras. 33 and 38.
In this way, motions to
strike or similar proceedings will be unnecessary since the Court can address
such issues on the certification application. …
[18] In Attis, at
paragraph 7, and later in Baxter, at para. 9, Justice Winkler found that
from the requirement in the class proceedings legislation in Ontario, similar
to this Court’s Rule 334.15(2), that a certification motion must be
brought within 90 days after the last statement of defence, it could be
inferred that a certification motion should have priority over other motions
and should be the first procedural matter to be heard and determined. (See also,
Moyes v. Fortune Financial Corp., [2001] O.J. No. 4455)
[19] The Courts have also
identified other considerations that weigh in favour of proceeding with the
certification motion first. In Baxter, at paras. 11-12, Justice Winkler
observed that given the fluidity surrounding class definitions and common
issues “… motions brought prior to certification may turn out to have been
unnecessary, over-complicated or incomplete.” He also pointed out that there
may be insufficient information to determine motions brought prior to the
certification motion. This is particularly true in those cases where the
certified common issues form the foundation for the Court’s assumption of
jurisdiction over extra-territorial parties. Finally, in those cases where
there are elderly potential class members they are entitled to have a timely
determination as to whether their proceeding is certifiable.
[20] The Courts have also
consistently found that other considerations may override the general
proposition that the motion for certification should proceed first. As the
Court stated in Baxter, at para. 14:
Admittedly, there are
instances where, as indicated in both Attis and Moyes, there can
be exceptions to the rule that the certification motion ought to be the first
procedural matter to be heard and determined. It may be appropriate to make an
exception where the determination of a preliminary motion prior to the
certification motion would clearly benefit all parties or would further the
objective of judicial efficiency, such as in relation to a motion for dismissal
under Rule 21 or summary judgment under Rule 20. Such motions may have the
positive effect of narrowing the issues, focusing the case and moving the
litigation forward. An exception may also be warranted where the preliminary
motion is time sensitive or necessary to ensure that the proceeding is
conducted fairly. (See: Moyes, supra at para. 12; Re Holmes and
London Life v. London Life Insurance Co. et al. (2000), 50 O.R. (3d) 388 (S.C.) at paras. 7-8; Hughes
v. Sunbeam Corp. (Canada) Ltd. (2002), 61 O.R. (3d) 433 (C.A.), at para. 15, leave to
appeal dismissed [2002] S.C.C.A. No. 446; Segnitz v. Royal and
SunAlliance Insurance Co. of Canada, [2001] O.J. No. 6016 (S.C.); Stone v. Wellington County
Board of Education (1999), 29 C.P.C. (4th) 320 (C.A.), leave to appeal
dismissed, [1999] S.C.C.A. No. 336.); Vitelli v. Villa Giardino
(2001), 54 O.R. (3d) 334 (S.C.); Pearson v. Inco (2001), 57 O.R. (3d) 278 (S.C)).
[21] In
the alternative, the Plaintiffs submit that since the issue on a motion to
strike is identical to the issue under rule 334(16)(1)(a), reasonable cause of
action, and a determination of this issue on a motion to strike constitutes a
determination for the purposes of the certification motion, the motions ought
to be heard together in the manner described earlier.
[22] It
is clear that a determination as to whether there is a reasonable cause of
action made in the context of a motion to strike constitutes a determination
for the purpose of the certification motion (see, for example Carom, at
para. 14). However, it does not necessarily follow that the two motions ought
to be heard together as the Plaintiffs contend. Indeed, in Carom, Chadha,
Direnfeld, and in Pearson with respect to one of the Defendants,
the cases relied on by the Plaintiffs, the motions to strike were all heard and
decided prior to the certification motions.
[23] It
is evident from the jurisprudence that although, in principle, a certification
motion ought to take precedence over other preliminary motions, in the end, the
order of the proceedings will be determined on the basis of the circumstances
of the particular case.
[24] In
the present case, in their preliminary motion, the Defendants allege that the
Plaintiffs’ claims are barred pursuant to sections 8 and 9 of the Crown
Liability and Proceedings Act, R.S.C. 1985, c. C-50; that those claims for
breaches of Charter rights alleging breaches before the Charter
came into force do not disclose a reasonable cause of action; and that the
remaining claims for Charter breaches do not disclose a reasonable cause
of action. The Defendants also seek to have the claim of one of the Plaintiffs
stayed pursuant to section 111 of the Pension Act, R.S.C. 1985, c. P-6
on the basis of the allegation that he has not applied for a pension for any of
the alleged injuries or losses he has sustained and to have the claims of the
other Plaintiffs stayed pursuant to the same provision for those alleged
injuries or losses for which they are not already in receipt of a pension.
[25] It
is evident from the grounds on which the Defendants’ motion is based that it
may resolve, narrow or give greater definition to the nature and the scope of
the case for certification. This potential saving of time and resources for
both the parties and the Court displaces the general principle that the
certification motion should take precedence.
[26] For
these reasons, I conclude that the motion to strike should be heard and
determined prior to the certification motion. I also reject the Plaintiffs’
alternative position as any potential savings would be lost by proceeding in
that fashion.
[27] I
am aware of the fact that there are potential members of the class who are
elderly. I also note that counsel for the Plaintiffs suggested that the motion
to strike be scheduled for the latter part of September and the certification
motion in late November, December or even in January in the event the Court
determined that the motion to strike would be heard prior to the certification
motion. While this position is at odds with the concern expressed earlier by
counsel about aging potential class members, the Court will nonetheless take
this important factor into account when scheduling.
[28] An
order will issue regarding the scheduling of the motion to strike.
“Dolores
M. Hansen”
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