Bringing A Pre-Certification Summary Judgment Motion

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Jul 3, 2013

Certifying a class action is expensive for all parties and can take years. A pre-certification summary judgment motion may resolve the case more quickly and save you money – but then again, it may not. In Kowch v. Gibraltar Mortgage Ltd. a Master of the Court of Queen’s Bench of Alberta held that a summary judgment application could be heard on its merits in a proposed class action before certification. The Master explained, “it is not a principle of class action law that weeds should be allowed to ripen and grow, instead of being nipped in the bud.”

British Columbia courts have held similarly that summary trials can decide the merits pre-certification, and the Ontario Court of Appeal approved the procedure of pre-certification summary judgment motions in Stone v. Wellington (County) Board of Education (1999).

While pre-certification summary judgment motions have been brought in Ontario, and in some cases successfully so, it is not appropriate in every case.

Assuming that the facts and law of the case are appropriate for summary judgment or summary trial, we consider the following factors when deciding whether to seek summary judgment pre-certification:

  1. It does not bind all class members: a pre-certification summary judgment motion binds only the representative plaintiff; a summary judgment ruling after certification binds the entire class. Nevertheless, a definitive win before certification on the merits may have the practical effect of dissuading other potential class members from suing.
  2. It accelerates and duplicates discovery: once a summary judgment motion is started, the parties must disclose facts and documents, put forward a witness and submit to cross-examination. This process can be expensive and if the motion is not successful may give class counsel ammunition for certification as well as two opportunities to conduct discovery.
  3. It may be foiled by poor pleadings: courts have been known to permit plaintiffs to amend their pleadings rather than end the litigation by granting summary judgment. If this happens, the plaintiff will be able to strengthen their case to respond to the defence’s strategy and evidence.

Ultimately, the wisdom of a pre-certification summary proceeding on the merits depends on the allegations, the nature of the evidence, the quality of the pleadings and the size and predictability of the class.

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