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CIVIL PROCEDURE - Parties - Class or representative actions

Wednesday, August 05, 2020 @ 9:23 AM  

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Application by two Quebec defendants in a proposed class proceeding for leave to appeal a sequencing order made by the case management judge. The applicants applied before the case management judge for an order that their applications for orders striking the claims against them for lack of jurisdiction be heard prior to the certification hearing. The judge heard those applications together with several others brought by defendants seeking to have their various challenges to the claim, procedural, jurisdictional and constitutional, heard before the certification hearing. In the result, the judge directed that all these motions, including the applicants’, should proceed in conjunction with the certification hearing. The applicants argued the judge’s refusal to consider their threshold applications concerning jurisdiction in advance of the certification exposed them to significant prejudice, was contrary to the interests of justice and ought to be reviewed by this court. 

HELD: Applications allowed. This was one of those rare cases where leave to appeal should be granted notwithstanding that the matter concerned an exercise by the judge of his discretion in the management of the litigation before him. The point of the appeal was of significance both to the practice, in terms of providing additional guidance for the exercise of discretion in sequencing orders for proposed class proceedings, and to this action in particular, given its proposed national scope. The applicants raised an arguable case that the chambers judge erred in principle in his approach to the question of prejudice in relation to jurisdiction simpliciter.

British Columbia v. Apotex Inc., [2020] B.C.J. No. 1050, British Columbia Court of Appeal, J.C. Grauer J.A., July 2, 2020. Digest No. TLD-August32020003