When faced with defendants' applications brought before the plaintiff's application to certify a class proceeding, BC courts have often held that there is a presumption that certification will proceed first. In that context, courts refer to certain sequencing factors in determining defendant requests for pre-certification applications. If the plaintiff has not filed a notice of application for certification, however, Bahraini v Cineplex Inc., 2025 BCSC 1384 indicates that except in "extraordinary cases," the defendant should be allowed to proceed with that preliminary application.
This ruling benefits defendants in proposed class proceedings who diligently pursue pre-certification applications (e.g., contesting jurisdiction, or applying for summary judgment). It may also encourage plaintiffs quickly to deliver a notice of application for certification to avoid the likelihood of being faced with defendant applications.
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- At issue in Bahraini was the timing of the defendants' application to strike the plaintiff's claim, but presumably the court's logic applies to other kinds of preliminary applications as well.
- The sequencing factors are set out in British Columbia v. The Jean Coutu Group (PJC) Inc., 2021 BCCA 219. However, as Justice Branch held in Bahraini, where the plaintiff fails to "bring their certification application to the main event" considering these factors is unnecessary.
- In an earlier blog post, the Quick Takes team considered the rules regarding costs in pre-certification applications, which are still awarded prior to certification, including to pre-certification applications that are heard concurrently with certification.
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