Court File and Parties

Citation: Wright v. United Parcel Service Canada Ltd., 2012 ONSC 1995 Divisional Court File No.: 415/11 Date: 2012-03-29

Superior Court of Justice – Ontario Divisional Court

Re: Ryan Wright and Julia Zislin, Plaintiffs (Respondents) And: United Parcel Service Canada Ltd., Defendant (Appellant)

Before: Jennings J.

Counsel: C. Scott Ritchie, Daniel Bach, Emile Maxwell and Michael Eizenga, for the Plaintiffs (Respondents) John A. Campion, Antonio Di Domenico and Nicole Melanson, for the Defendant (Appellant)

Heard: March 23, 2012

Endorsement

[1] The defendants bring this motion for directions regarding the hearing of one of two appeals from two discreet orders pronounced by Horkins J. on August 26, 2011.

[2] The first order certified this action as a Class Proceedings, defining the class. UPS brought a motion for leave to appeal the order for certification pursuant to the provisions of s.30(2) of the Class Proceedings Act, 1992 (the CPA). The motion for leave was brought within 7 days of the order and was filed with this court in September 2011. It did not provide for a date for the hearing of the leave motion. No further steps have been taken to perfect the leave motion.

[3] Having granted certification Horkins J. then heard a motion brought by the plaintiffs seeking summary judgment on certain common issues. She granted summary judgment on behalf of the class. UPS appealed that order to the Court of Appeal, as required under the Rules and s.30(3) of the CPA. The appeal has been perfected and awaits hearing.

[4] UPS now asks for an order “adjourning” its motion for leave to appeal to this Court pending the final disposition of its appeal to the Court of Appeal. Counsel argues forcefully that if UPS succeeds in having the summary judgment set aside, the appeal of the certification may become moot, or at the least, there may be an impact on the grounds put forward in support of granting leave. Counsel submits that to proceed with the leave motion without hearing from the Court of Appeal will be an inefficient, cost wasting exercise requiring re-hearings if the Court of Appeal should grant UPS relief.

[5] Obviously it is important both to the parties and to the administration of justice that due regard be had to principles of judicial economy in determining the issues raised in these proceedings. By raising the specter of the inefficient use of judicial resources, counsel makes a valid argument that is not without attractiveness.

[6] Upon reflection, however, I conclude that counsel has got things a little out of order. It is the certification order that comes first and frames the proceedings and without that order there can be no summary judgment. That, it would seem to me, would explain in part why the Legislature determined that an appeal of the certification order which gets the action under way may only proceed with leave and leave must be sought and heard promptly as provided by rule 62.02. This may be compared with the procedure laid down for appealing an order refusing certification, which by s.30(1) of the CPA goes directly to the Divisional Court without leave. To me the clear implication is that once a certification order is made, the matter is to proceed expeditiously. Further, only if the certification order stands does it become necessary to consider the subsequent order for summary judgment.

[7] Accordingly, I conclude that the motion for leave should be heard and determined without further delay.

[8] The plaintiffs bring a cross-motion asking that the leave motion be dismissed because by failing to name the first available date for a hearing, the motion for leave is fatally flawed.

[9] As I have said, the notice of motion did not disclose a date but rather asked for a hearing on a date to be set by the Registrar. I am told that that conforms to a practice that has developed in Toronto on leave applications from certification orders. It is said it permits the notice to be served promptly and thereafter all counsel can be canvassed for a convenient date for the hearing of the motion. I am unaware of that practice.

[10] I am not disposed to dismiss the leave motion on that technical ground. The Divisional Court office accepted the “defective” notice for filing and assigned a file number to the motion, suggesting to me that some form of blessing was given to the form of the motion.

[11] I order that the leave motion be perfected forthwith and heard at the earliest opportunity. Counsel for UPS suggested to the Registrar of this Court that 3 to 4 days will be required for argument on the leave motion. That is an extraordinary amount of time to be taken on a leave motion. If anything close to that amount of time is required, it must be with the consent of the Divisional Court team leader. Accordingly, I direct the parties to immediately arrange through Madam Justice Swinton the time required and a date for the hearing.

[12] No case directly on the point of the priority of hearing appeals in class actions was cited to me, leading me to believe that this is a matter of first instance. However, if costs claims are to be made and no agreement between counsel is possible, three page submissions should be filed with my assistant within 21 days of the release of these reasons.

JENNINGS J.

DATE: March 29, 2012