Pre-Certification Motions that Dispose of or Limit the Issues at Trial: Six Factors for Judges to Consider

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 certification motions. Unfortunately, the legislature did not delineate when it is appropriate for judges to order a conjunctive hearing. We must therefore 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.