Pre-certification motions that dispose of or limit the issues at trial: six factors for judges to consider

AuthorAlexander Mulligan
PositionJD at Osgoode Hall Law School, and BSc at the University of Toronto
Pre-Certif‌ication Motions that Dispose of or Limit the
Issues at Trial: Six Factors for Judges to Consider
Alexander Mulligan
: Before Bill 161, Ontario courts rarely heard Rule 20 and Rule
21 motions, also known as dispositive motions, prior to certif‌ication of
a class action. Among the sweeping changes brought in by Bill 161 was
the creation of a presumptive right for parties to bring pre-certif‌ication
motions to dispose of the proceeding, in whole or in part, or to narrow the
issues. Under this new presumptive right, judges shall hear these motions
f‌irst unless they order them to be heard in conjunction with certif‌ica-
tion motions. Unfortunately, the legislature did not delineate when it is
appropriate for judges to order a conjunctive hearing. We must there-
fore ask: Under what circumstances should a judge order dispositive pre-
certif‌ication motions to be heard in conjunction with certif‌ication? This
paper argues that judges should consider six factors when scheduling a
dispositive motion, including the type of motion, the potential impact of
the motion, the plaintif‌f’s funding, the type of proposed class proceeding,
the benef‌its of delayed disposition, and whether a pre-certif‌ication motion
is in the interest of justice. To establish the six factors, this paper reviews
caselaw prior to 2020 on the scheduling of pre-certif‌ication motions and
academic commentary on dispositive motions in both Canada and the
United States. It of‌fers a survey of pre-Bill 161 jurisprudence, a discussion
of the strengths and weaknesses of dispositive pre-certif‌ication motions,
and an analysis of the six factors. Ultimately, this paper provides guidance
for motions judges on when they should hear dispositive pre-certif‌ication
motions in conjunction with certif‌ication.

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