www.lexpert.ca 13
in the action" before they certify it.
Recent BC case law has also "opened
the door wider" on defendants bringing
a motion before certification, says
MacKinnon. In 2021, British Columbia v.
e Jean Coutu Group (PJC) Inc. found
there is no presumption that certification
is the first procedural matter heard and
determined in a class action.
"It's a case-by-case analysis," she says,
adding that the ruling is only a year old
and has not been applied in many cases.
"But I have certainly already noticed that
it changes the dynamic, and it certainly
changes a judge's willingness to look at
a defendant's request to bring a motion
before certification."
COURTS TAKING STRICTER LINE ON CERTIFICATION
Trend traces back to two SCC rulings, says Cheryl Woodin of Bennett
Jones LLP:
• Atlantic Lottery Corp. Inc. v. Babstock
• 1688782 Ontario Inc. v. Maple Leaf Foods Inc.
Privacy class actions where courts denied certification because
plaintiffs failed to show harm or monetary costs:
• Bourbonnière v. Yahoo! Inc., 2019 QCCS 2624
• Setoguchi v. Uber B.V., 2021 ABQB 18
