Court File and Parties
COURT FILE NO.: CV-18-00611771-00CP DATE: 20190320 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARK REYNOLDS, Plaintiff – and – HERSHEY CNADA INC., THE HERSHEY COMPANY and HERSHEY CHOCOLATE & CONFECTONARY CORPORATION, Defendants
BEFORE: E.M. Morgan J.
COUNSEL: Kirk Baert and Celeste Poltak, for the Plaintiff Scott Maidment, Calie Adamson, Guneev Bhinder, for the Defendant, Hershey Canada Inc.
HEARD: March 19, 2019
Case Conference Endorsement
[1] This is an initial case conference for this proposed class action to set the schedule for the proceedings leading up to a certification motion. The one Canadian Defendant has been served and is represented here by counsel; the other two Defendants have not yet been served and have not attorned to Ontario jurisdiction.
[2] Although formally the claim is brought on the basis of misrepresentation, it involves far reaching issues of international human rights. The Plaintiff alleges that the Defendants misrepresented how their products are manufactured, and that in fact the chocolate used in the those products are produced in slavery-like conditions by child labour in West Africa. He seeks damages on behalf of all consumers of the Defendants’ products in Canada.
[3] Counsel for the Defendant, Hershey Canada Inc., plans to argue that the Plaintiff has no cause of action. The contentious scheduling issue for the moment is whether this should take the form of a pre-certification motion under Rule 21 of the Rules of Civil Procedure or should be raised under section 5(1)(a) of the Class Proceedings Act (“CPA”) as a response to the Plaintiff’s certification motion.
[4] Scheduling issues of this nature are discretionary on the part of the case management judge; one therefore finds cases going either way: see 1523428 Ontario Inc. v The TDL Group, 2018 ONSC 1180. On one hand, Defendant’s counsel submits that if the matter is to be disposed of on preliminary grounds in a pleadings motion, it serves the causes of timeliness and judicial economy to do so at an early stage. On the other hand, Plaintiff’s counsel submits that arguing the point as a self-standing motion rather than as a certification issue will lead to pre-certification appeals and will delay the proceedings rather than expedite them.
[5] The way it has been framed by Defendant’s counsel, the challenge to the cause of action will not be a minor procedural motion. Rather, it is envisioned as a substantive attack on the entire basis of the Plaintiff’s claim. Counsel for the Defendant points out that previous courts have noted that whether or not a motion will potentially dispose of an entire action is an important consideration in determining whether it should proceed as a preliminary matter: Cannon v Funds for Canada Foundation, 2010 ONSC 146, at para 15. In fact, Nordheimer J. (as he then was) stated in Moyes v Fortune Financial Corp., [2001] OJ No 4455, that a defendant’s motion that the claim discloses no reasonable cause of action is an obvious one that should proceed in advance of a certification motion.
[6] On the other hand, Winkler J. (as he then was) observed in Attis v Canada (Minister of Health), [2005] OJ No 1337, at para 7, that as a matter of principle the certification motion should be the first thing a court hears in a proposed class action. He went on to say, at para 9, that where other challenges will predictably generate more motions and appeals, it is best to address all of the issues together in the certification motion. This approach reflects Plaintiff’s counsel’s comment that the no-cause-of-action argument that the Defendant will make in a Rule 21 motion is a precise reflection of the argument it will make under s. 5(1)(a) of the CPA, and that the Defendant compromises no rights by addressing the question in the latter context.
[7] The Supreme Court of Canada addressed this issue in Garland v Consumers Gas Co., 2004 SCC 25, [2004] 1 SCR 629, at para 90. In a memorable phrase, the Court admonished that “litigation by instalments” should be avoided, as it does a disservice to the parties and to the administration of justice. Although, as Defendant’s counsel points out, the Court there was referring to a proposal to hive off a portion of the case for a later date rather than a motion to dismiss, the policy concern is the same as that raised here.
[8] If the cause of action is addressed in a stand-alone motion, it will almost inevitably proceed along an independent line of appeal. Only when that process has reached an end will the parties be in a position to proceed with the certification stage (unless some other preliminary challenge comes along – Defendant’s counsel has already suggested there may be a jurisdictional challenge by the two foreign Defendants). I am reluctant to schedule this case in a way which will lead to that type of piecemeal approach to the litigation.
[9] Under the circumstances, from a procedural point of view it is preferable for the Defendant not to bring a Rule 21 motion. Rather, it is best for the Defendant’s challenge to the Plaintiff’s cause of action be made under section 5(1)(a) of the CPA in response to the Plaintiff’s motion for certification.
[10] The schedule leading to the certification motion is set out below. I have taken the Plaintiff’s proffered schedule and pushed the dates back so that Defendant’s counsel will have more than the 90 days they say they will need to respond to the Plaintiff’s motion record.
| Step in the litigation | Date to be completed |
|---|---|
| Motion record served | June 14, 2019 |
| Responding record served | September 13, 2019 |
| Reply record served | October 11, 2019 |
| Cross examinations | December 20, 2019 |
| Plaintiff’s factum served | January 31, 2020 |
| Defendant’s factum served | February 28, 2020 |
| Reply factum served | March 27, 2020 |
| Motion returnable | April 2020 |
[11] Counsel may be in touch with my assistant to book a hearing date for April 2020.
Morgan J.