The judge’s order in Pennyfeather v. Timminco Ltd. — a shareholder lawsuit — ignited a wave of commentary among class action practitioners, bloggers, and Twitterers. “This decision represents a marked departure from the prevailing procedure in class actions,” said an article co-written by Bennett Jones LLP defence litigator Robert Staley. Mary Jane Stitt, a partner at Blake Cassels & Graydon LLP, was more blunt. Defendants, she told the Globe and Mail, are now “being asked to fight the battle before you even know whether you’ll have to go to war.”
Although Perell’s ruling actually reflects the wording of Ontario’s class action statute, it undercuts a 15-year, unwritten custom in which defendants typically wait until a case is certified before filing their defence. Perhaps the noisy reaction to it was less aimed at the decision itself, and more an expression of years of built-up frustration among the defence bar — a sense that the certification game is becoming increasingly stacked against them, and that courts are offering advice, re-interpreting conventions, and otherwise ushering plaintiffs through the certification gates.
Perhaps Perell’s ruling was simply the last straw. “There’s been a real surge in the common-law provinces in a liberalization in the courts’ approach to certification,” says Adrian Lang, a class action litigator with Stikeman Elliott LLP. “I’d like to think as a defendant that we will start to see a bit of retrenching. . . . We certainly can’t get more liberal than we are right now.”
Certification may be simply a procedural matter, but the stakes are high for both sides. Corporate defendants say a certified class action creates lousy optics: an impression in the public’s mind that the company has committed a wrong, even though the merits of the claim have yet to be judged. For plaintiffs, certification can be a tool to apply pressure against a defendant to settle before the case goes to trial.
Lang and her colleagues in the defence bar say in the early years, Canadian courts outside Quebec took a more cautious approach to certifying cases, following the introduction of class action legislation in Ontario and British Columbia in the 1990s. Individual preliminary motions were routinely accepted from defendants in advance of certification. And statements of defence were commonly withheld with the courts’ approval until after certification, a custom that emerged from Ontario (now Chief) Justice Warren Winkler’s 1996 decision in Mangan v. Inco Ltd. that judges had wide discretion to allow such delays by defendants.
Laila Brabander, assistant vice president and specialty claims manager for Chubb Insurance Co. of Canada, who manages litigation against corporate defendants insured by Chubb, says there’s been a “noticeable change” in the courts’ approach in recent years. “There’s no question that the pendulum has swung, and recent decisions likely suggest that certification is easier,” she says.
In 2005, for example, in the national residential schools class action Baxter v. Canada, Winkler again influenced the system by ruling that certification motions should be heard promptly, and should not be delayed by other motions. That led to an increasing reluctance by other judges to entertain a series of technical challenges by defendants.
Elsewhere there have been examples of judges helping plaintiff lawyers draft more sustainable pleadings, as Perell did before he certified the overtime labour class action McCracken v. Canadian National Railway Co. in 2010.
There are also cases — as in Smith v. Inco, recently overturned by the Ontario Court of Appeal — of judges actively rewriting common issues during a trial. “There’s a perception that the practice of some judges assisting plaintiffs in improving their pleadings is unfair to defendants,” says Sonia Bjorkquist, a class action litigator at Osler Hoskin & Harcourt LLP. “I wonder about whether it’s tipping the balance in favour of plaintiffs.”
Other lawyers say judges are behaving properly. After all, the purpose of class actions is to extend justice to large groups of people who otherwise might not receive it. Why toss out a proposed lawsuit with the correct germ of an idea, simply because it hasn’t been pleaded correctly by the plaintiff’s counsel? “In the CNR case, the plaintiff lawyers didn’t describe the common issues exactly the way they should have to get certified, so Justice Perell modified them. He was doing his job,” says Kirk Baert, a plaintiffs’ litigator at Koskie Minsky LLP in Toronto. “To me it’s not logical, in a claim of half-a-billion dollars, to say, ‘You lose certification because of the way you worded your claim.’ That’s not the purpose of the justice system, to have a series of trap doors people can fall into. Cases should be decided on their real merit, and sometimes there are pleadings problems.”
The trouble is that judicial re-working of plaintiff pleadings has become so commonthat defendants now have trouble knowing what precisely to defend, says Lang. “It makes litigating prior to certification a challenge, because you’re dealing with a constantly moving target.”
Meanwhile in competition class actions, “every province in this country, I would argue, has more recently become overwhelmingly plaintiff-friendly,” says Katherine Kay, a competition law specialist with Stikeman Elliott LLP. The B.C., Quebec, and Ontario courts have since 2009 certified a series of price-fixing cases — including Pro-Sys Consultants Ltd. v. Infineon Technologies AG in the B.C. Court of Appeal — despite difficulties in showing how harm was passed down through a distribution chain to indirect purchasers. Two similar cases in B.C. produced different rulings — Pro-Sys Consultants Ltd. v. Microsoft Corp. and Sun-Rype Products Ltd. v. Archer Daniels Midland Co. — that were granted leave to appeal to the Supreme Court of Canada on Dec. 1, 2011.
Kay says certification has become almost a foregone conclusion in the competition area, not solely because the courts favour plaintiffs, but because in light of the complexity of these cases — and the conflicting expert evidence — courts are passing the buck to trial judges rather than scrutinizing whether a proposed class action meets the certification test. As a result, a series of “messy” cases, as Kay puts it, with “unbounded and inappropriate” common issues and class definitions, are winding up at trial. “The only time you have to resolve the issue of whether or not it’s an appropriate case to be treated as a class action, the only kick you get at that can is on certification,” she says. “So I would argue it’s an abdication — that’s a strong word, I appreciate that — but it’s an abdication of the court’s responsibility to duck these issues on certification and say, ‘You know what, we’re not up to dealing with them, so lets certify it and leave it to the trial judge.’“
The courts have made a policy decision, I would argue, that class actions are good, and we’re not going to subject them to the kind of scrutiny that we do other cases.”
The access to justice that class actions offer large groups of citizens, defence lawyers say, is likely what’s motivating judges to ease the way for plaintiffs in many certification proceedings. That, and the desire to streamline lengthy, expensive, and drawn-out pretrial procedures, may be the impetus behind Perell’s ruling on the early filing of statements of defence. “I don’t see that as a particularly pro-plaintiff decision,” says Baert. “I’d say it’s intended to make it easier for judges doing these cases to have a grip on what’s in dispute, earlier in the case.”
In his decision, Perell argues that the early delivery of a statement of defence “could be a fresh step that could foreclose any subsequent attack by the defendant for any pleadings’ irregularities.” But defence lawyers warn that Perell’s desire to streamline class actions, if adopted by other courts, could have the opposite effect. Rather than making the pre-certification phase more efficient, it could force defendants to file numerous technical and substantive preliminary motions at the very start of the pre-certification process, before their defence-filing deadline. “We’ll have to see how it unfolds,” says Bjorkquist. “Allowing defendants to attack dubious claims or sloppy pleadings, or over-broad pleadings before engaging in the costly certification process, could actually improve the system. On the other hand it may also threaten access to justice, because requiring defendants to bring a variety of motions will simply delay certification. Think about it — you bring a motion, you lose, you appeal, etc.”
What’s more certain, says Bjorkquist, is that filing an early defence will mean more defence amendments in response to ongoing plaintiff amendments, and therefore higher costs for defendants, as the case proceeds through certification. More importantly, she says: “Is it fair that defendants are forced to plead earlier, and disclose positions or strategy before determining whether the plaintiff has met their burden under the legislation, as to whether the proposed class action should succeed at all?”
Of course it’s fair, says Baert. “In all other types of litigation, no matter how complex, defendants file defences at the beginning, within the time limits and the rules. They manage to do so without the sky falling, or the world coming to an end.” Baert also calls complaints about a plaintiff-friendly trend in the courts “a lot of smoke.”
“I certainly don’t think it’s remotely plausible to argue that judges in this country are bending over backwards to help plaintiffs,” he says. “You only have to look at, where do most judges who handle complex litigation come from — the corporate law side. Is it likely there’s this cadre of extremely liberal judges who are looking to completely open the floodgates of class action litigation by bailing out incompetent plaintiffs counsel? Seems unlikely to me.”