L. Jackson

In a proposed class proceeding, the defendants sought to schedule a pleadings motion to strike certain claims and dismiss the action against several defendants before the certification motion.

The court considered the principles governing sequencing of motions in class proceedings and the factors identified in prior authority regarding whether preliminary motions should precede certification.

Applying those factors, the court held that the pleadings motion would not dispose of the entire proceeding or substantially narrow the issues and could generate interlocutory appeals and delay.

Judicial economy and efficiency favoured hearing the pleadings motion together with the certification motion.

The defendants were therefore directed to deliver their Statement of Defence, without prejudice to bringing their proposed motion later.

The accused was charged with two counts of unlawfully being in a dwelling-house with intent to commit an indictable offence contrary to section 349(1) of the Criminal Code, and one count of theft under $5,000 contrary to section 334(b).

The Crown alleged the accused entered the complainant's residence on two occasions without lawful excuse: first in July 2010 to steal audio cassette tapes, and second in August 2010 to plant a listening device to intercept private communications.

The accused claimed he had a lawful excuse as the residence was a matrimonial home.

The trial judge found the accused guilty of the August 2010 entry but acquitted him of the July 2010 entry and theft charge.