The court has discretion on whether to permit a summary judgment motion to proceed prior to a motion for certification in a class action.
In Belec v. Sun Life Assurance Company of Canada, 2020 ONSC 4961, Justice R. Smith outlined the following factors to consider, as determined in a previous decision:
- whether the motion will dispose of the entire proceeding or substantially narrow the issues to be determined;
- the likelihood of delays and costs;
- whether the outcome of the motion will promote settlement;
- whether the motion will give rise to interlocutory appeals and delays that would affect certification;
- interest of economy and fairness and efficient determination.
Justice Smith ordered the defendant’s summary judgment motion to proceed at the same time as the motion for certification. His Honour indicated that this will promote access to justice for all class members as their certification motion will not be unduly delayed by an appeal of a summary judgment decision.
Dealing with both motions at the same time will avoid the delay and costs that would be incurred with two proceedings and possibly two appeals.
Further, the defendant would not suffer any prejudice if both motions are heard at the same time.
Justice Smith noted that the proposed amendments to the Class Proceedings Act allow a summary judgment motion to be brought before certification. However, even if these amendments were in force, His Honour stated that he would still order both motions to be heard at the same time.