SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: CV-15-2547-00
DATE: 20150930
RE: CLAUDETTE WOOD, BRUCE COOK and JOHN FEATHERSTONE
(Plaintiffs)
-and-
CTS OF CANADA CO., CTS OF CANADA HOLDINGS CO., CTS OF CANADA GP LTD., CTS OF CANADA L.P., AND CTS CORPORATION
(Defendants)
BEFORE: Sproat, J.
COUNSEL:
S. Moreau, M. Moktar, N. Veitch (Student-at-Law) for the Plaintiffs
K. Taylor, L. Jackson for the defendants
HEARD: September 25, 2015 (Teleconference)
E N D O R S E M E N T
[1] The scheduling issue is whether a pleadings motion by the defendants, to strike two claims as untenable and dismiss against three of the defendants, should be heard before or at the same time as the certification motion
[2] As per Strathy J., as he then was, in Cannon v. Funds for Canada Foundation, 2010 ONSC 146, the general principle is that certification should be the first procedural motion to be heard. The court does have a discretion to depart from this. Strathy J. identified the following non-exhaustive list of factors:
(a) whether the motion will dispose of the entire proceeding or will substantially narrow the issues to be determined;
(b) the likelihood of delays and costs associated with the motion;
(c) whether the outcome of the motion will promote settlement;
(d) whether the motion could give rise to interlocutory appeals and delays that would affect certification;
(e) the interests of economy and judicial efficiency; and
(f) generally, whether scheduling the motion in advance of certification would promote the “fair and efficient determination” of the proceeding (para 15).
[3] In my view these factors are relevant to this case and weigh heavily in favour of having the pleadings motion heard at the same time as the certification motion. In this regard:
(a) the motion will not dispose of the entire proceeding or substantially narrow the issues;
(b) the motion could give rise to interlocutory appeals;
(c) while the motion is to dismiss against three defendants they are all closely related and represented by the same counsel;
(d) as observed by Strathy J. the Rule 21.01(1)(b) test (under which the defendants intend to move to dismiss against three defendants) is the same as, and can most conveniently be dealt with, under the “reasonable cause of action” test in s. 5(1)(a) of the Class Proceedings Act, 2002, S.O. 1992, c. 6 (“CPA”);
(e) as a matter of common sense and experience I doubt the pleadings motion will promote settlement;
(f) economy and judicial efficiency are best served by hearing the motions at the same time.
[4] The defendants shall therefore deliver their Statement of Defence. In accordance with the order in Labourers Pension Fund of Central and Eastern Canada v. Sino-Forest Corporation, 2012 ONSC 1924 at para. 72, the defendants’ delivery of a Statement of Defence is without prejudice to their right to proceed with their proposed motion and deliver a Fresh or Amended Statement of Defence following the hearing of the motions.
[5] If the plaintiffs seek costs in relation to this matter, they shall provide written costs submissions by October 10 and the defendants shall respond by October 20, 2015.
Sproat, J
DATE: September 30, 2015
COURT FILE NO.: CV-15-2547-00
DATE: 20150930
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: CLAUDETTE WOOD, BRUCE COOK and JOHN FEATHERSTONE
(Plaintiffs)
-and-
CTS OF CANADA CO., CTS OF CANADA HOLDINGS CO., CTS OF CANADA GP LTD., CTS OF CANADA L.P., AND CTS CORPORATION
(Defendants)
BEFORE: Sproat, J.
COUNSEL: S. Moreau, M. Moktar, N. Veitch (Student-at-Law) for the Plaintiffs
K. Taylor, L. Jackson for the defendants
ENDORSEMENT
Sproat, J.
DATE: September 30, 2015