August 24, 2015
In the Court of Appeal for Ontario’s latest pronouncement on the test for certification, Chief Justice Strathy re-iterated Ontario’s liberal approach to certification and focused on the benefits associated with attentive case management as class proceedings wind their way through this province’s courts.
Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 572 was a proposed class action alleging that lottery licensing and administration fees collected by the municipalities are direct taxes and therefore ultra vires because the revenues far exceed the costs of administration. Although there were many issues on appeal, Chief Justice Strathy focused on the unique feature of case management of class proceedings that render this vehicle appropriate to resolve group claims:
 [. . .] In my view, the significant features of class proceedings – the ability to case manage groups of claims raising common issues and the ability to make binding determinations of those issues – make a class proceeding appropriate to resolve these claims. With active and strategic case management, and a resolve by the parties to focus on the fair and efficient resolution of the issues, both liability and limitation period issues could be resolved relatively expeditiously.
Section 12 of the Class Proceedings Act, 1992 empowers the case management judge to make appropriate orders to ensure the fair and expeditious determination of the proceeding. Case management judges are entitled to seek and impose creative solutions to the efficient determination of the issues. For example, Chief Justice Strathy identified the following:
- The case management judge is entitled to give directions as to when certain steps should be accomplished and as to what motions may be brought, and when.
- The case management judge may prohibit motions from being brought before certain steps have been accomplished and may make orders as to the sequencing of motions.
- The case management judge is also entitled to determine the order in which some issues are addressed.
- He or she is entitled, but not required, to determine whether some issues are amenable to summary judgment and to schedule the proceedings accordingly.
The benefit of case management is that it may render proceedings which may otherwise be unmanageable efficient and it permits the parties to fairly and effectively resolve issues in the context of the proceeding. Ultimately, the availability of case management weighed heavily in favour of certification in the preferability analysis.
It is no surprise that Chief Justice Strathy identified case management as an important component of the preferability analysis, since he was a judge on Ontario’s class proceeding list for many years. As class proceeding jurisprudence matures in Ontario, one hopes that judicial familiarity with the intricacies of the regime – for example, case management – will inform judicial analysis at this province’s highest court.