IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141015

Docket: S127416

Registry:
Vancouver

Between:

Stacie Vanessa
Strohmaier and Dawn Sam

Plaintiffs

And

Her Majesty The
Queen in Right of the Province of British Columbia,

as represented by
the Attorney General and

Public Guardian
and Trustee of British Columbia

Defendants

Before:
The Honourable Mr. Justice Skolrood

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This matter involves a proposed class proceeding
under the Class Proceedings Act, R.S.B.C. 1996, c. 50 (the “Act”).

[2]            
Briefly stated, the two named plaintiffs were, as children, under the
care and custody of the province, which involved them being placed in foster
care. Both allege that they suffered personal injuries as a result of tortious
and/or criminal acts of third parties while they were in the care of the
province.

[3]            
The essence of the plaintiffs’ claims is that the defendants, the Crown
in Right of the Province of British Columbia and the Public Guardian and
Trustee (the “PGT”), failed to pursue compensation on their behalf for the
injuries suffered, either by way of civil action or claims under the Criminal
Injury Compensation Act, R.S.B.C. 1996, c. 85 and related statutes.

[4]            
The plaintiffs allege that in failing to seek compensation on their
behalf, the defendants breached statutory, common law, and fiduciary duties
owed to them.

Procedural History

[5]            
The plaintiffs’ notice of civil claim was filed on October 23, 2012.

[6]            
No application for certification of the proceeding under the Act has yet
been filed.

[7]            
On May 30, 2014, the PGT applied for the assignment of a trial judge,
principally for the purpose of scheduling an application to strike the notice
of civil claim.

[8]            
On September 17, 2014, the parties appeared before me at a judicial
management conference. At that conference, the PGT took the position that it
should be permitted to proceed with its application to strike in advance of
certification, whereas the plaintiffs argued that the certification application
should go first.

[9]            
The Attorney General on behalf of the Province took no position.

[10]        
In light of the parties’ differing views on the proper sequencing of the
steps in the litigation, a hearing was scheduled for September 29, 2014, to
give the plaintiffs and the PGT the opportunity to make more fulsome submissions
on the sequencing issue.

[11]        
These Reasons address the question of whether the PGT will be permitted
to proceed with its application in advance of the certification hearing.

[12]        
In considering the issue of sequencing, I have not considered nor do I make
any comment on the merits of the PGT’s proposed application to strike.

Legal Principles

[13]        
The parties both acknowledge that there are cases going both ways in
terms of whether a motion to strike should be permitted to precede the
certification hearing. It is clear that the decision is a discretionary one and
one that is highly dependent on the specific facts of the particular case: see
for example Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2008 BCSC
1263 at paragraph 15.

[14]        
Both parties also point to the decision of Strathy J. in Cannon v.
Funds for Canada Foundation, 2010 ONSC 146, where the court set out a
number of factors relevant to the exercise of this discretion:

15

(a) whether the motion will dispose
of the entire proceeding or will substantially narrow the issues to be
determined;

(b) the likelihood of delays and
costs associated with the motion;

(c) whether the outcome of the
motion will promote settlement;

(d) whether the motion could give
rise to interlocutory appeals and delays that would affect certification;

(e) the interests of economy and
judicial efficiency; and

(f) generally, whether scheduling the motion in advance of
certification would promote the "fair and efficient determination" of
the proceeding …. .

The Parties’ Positions

[15]        
The principal points advanced by the PGT in support of its position may
be summarized as follows:

              
1.         
The PGT is ready to proceed with its application, whereas the plaintiffs
are not ready to proceed with certification. The PGT notes that we are
approaching the two‑year anniversary of the filing of the notice of civil
claim and yet no certification application has been brought, notwithstanding
the requirement in s. 2(3) of the Act that an application for
certification be brought within 90 days of the expiry of the deadline for
filing a response to civil claim;

              
2.         
The PGT’s application will substantially narrow the issues in the
litigation. If successful, one of only two defendants will be removed, which
will simplify the process going forward. If unsuccessful, the PGT will concede
that the pleadings disclose a cause of action for the purpose of s. 4(1)(a)
of the Act; and

              
3.         
The PGT’s application promotes efficiency and judicial economy. If
successful, it will avoid the heavy costs inevitably associated with a class
proceeding, and will also reduce the strain on judicial resources by
simplifying the case.

[16]        
The plaintiffs’ key points in response are:

              
1.         
There is a general presumption that the certification application should
be the first procedural matter dealt with in a proposed class proceeding;

              
2.         
Allowing the application to strike to proceed first will lead to spin‑off
motions and, in effect, litigation by instalment which is to be discouraged;

              
3.         
If unsuccessful, the PGT will likely appeal, which will lead to further
delay and cost;

              
4.         
The PGT’s application will not dispose of the entire proceeding, as the
claims against the Province will continue and the PGT, given its role with
respect to the care of the plaintiffs, will of necessity, continue to be
involved in the case;

              
5.         
Dealing in isolation with the question of whether the pleadings disclose
a cause of action is inefficient, given that the same issue must be determined
on the certification application; and

              
6.         
The plaintiffs acknowledge that the cause of action advanced may be
novel, but say that it would be inappropriate to dismiss it on the basis of an
application to strike. Rather, the claim and the law should be permitted to
evolve through the certification process, as is common in class proceedings.

Analysis

[17]        
As the plaintiffs submit, numerous authorities have held that, as a
general principle, certification should be the first procedural matter
determined in a proposed class proceeding: see for example Attis v. Canada
(Minister of Health) (2005), 75 O.R. (3d) 302.

[18]        
This flows in part from the fact that the class proceeding statutes,
including the B.C. act, set out a relatively tight timeframe for bringing the
certification application following the commencement of the action.

[19]        
That principle, however, is not absolute and may be displaced, depending
upon the particular circumstances of a given case: see again Pro-Sys
Consultants Ltd. v. Microsoft Corp.

[20]        
In Moyes v. Fortune Financial Corp., [2001] O.J. No. 4455,
Justice Nordheimer of the Ontario Supreme Court of Justice, having acknowledged
the general principle, said the following:

…I do not wish to be seen as
attempting to lay down any general rule that does not allow of exceptions. I
recognize that there are some preliminary motions which may necessarily need to
be determined in advance of a certification motion. The most obvious is a
motion under Rule 21 for a determination that the claim does not disclose a
reasonable cause of action. While the existence of a reasonable cause of action
is a consideration on the certification motion, the practical reality is that,
if the defendant can establish there is no reasonable cause of action revealed
by the statement of claim at all, there would be a strong argument in favour of
determining that discreet issue before all of the costs attendant on a
certification motion were incurred by the parties.

[21]        
Subsequent to Moyes, Justice Strathy in Cannon articulated
the various factors that inform the exercise of the court’s discretion, to
which I have already referred.

[22]        
Considering those factors and taking account of the circumstances of
this case, I have concluded that the PGT’s application to strike should precede
the certification application. My reasons for coming to this conclusion are as
follows.

[23]        
First, as submitted by the PGT, it is prepared to proceed with its
application, whereas the plaintiffs are not ready to proceed with the
certification application. Despite the requirements set out in s. 2(3) of
the Act, no certification materials have been delivered almost two years
after the commencement of the action. Given this delay, which is both
significant and not adequately explained, the presumption in favour of
proceeding with certification first is displaced and it is open to the PGT to
avail itself of the mechanisms available under the Rules of Court to seek to
dispose of the action on a summary basis.

[24]        
Second, while the PGT’s application, if successful, will not dispose of
the matter in its entirety, given that the action will continue against the
Province, it will significantly narrow the issues and simplify the process.

[25]        
Third, I do not accept that by permitting the PGT’s application to
proceed, the litigation will be conducted in a piecemeal fashion or that it
will be unduly delayed or derailed by multiple appeals. In this regard, I note
the PGT’s commitment that if its motion is unsuccessful, it will accept this
determination for the purposes of establishing a cause of action under s. 4(1)(a)
of the Act, and it will combine any appeal with a subsequent appeal if
necessary from the certification decision.

[26]        
Finally, I am satisfied that proceeding first with the PGT’s application
will serve the interests of economy and judicial efficiency. Numerous
authorities have commented on the burgeoning costs and complexity of class
action litigation: see for example Tiemstra v. Insurance Corp. of British
Columbia (1996), 22 B.C.L.R. (3d) 49 at para. 20, affirmed 38 B.C.L.R. (3d)
377, as well as Royster v. 3584747 Canada Ltd., 19 January 2001,
Vancouver Registry No. A992095, at para. 19.

[27]        
In my view, a party should not be precluded from taking reasonable steps
to avoid such costs through recourse to the mechanisms available to it under
the Rules of Court, such as Rule 9‑5(1), which the PGT seeks to invoke on
its application. That is particularly so where, as here, the plaintiff has
failed to move the action forward with any dispatch.

[28]        
I am also of the view that the court on such applications plays an important
gatekeeping role by screening and bringing to an early end cases that lack
merit and that are bound to fail, before the parties and the court are put to
the time and expense that generally accompanies class actions.

[29]        
In this regard, I note the recent Supreme Court of Canada decision in Hryniak
v. Mauldin, 2014 SCC 7, where the court underscored the value of expanded pre‑trial
and summary procedures as an aspect of access to justice. That is not to say
that the interests of fairness and a proper determination on the merits must
always give way to expediency, but it recognizes that, in appropriate cases,
justice is best served by an early determination.

[30]        
I am mindful of the plaintiffs’ submission that new or novel causes of
action such as that advanced in this case should not be summarily disposed of,
but should be permitted to develop through a more fulsome process. However,
that argument is better made in response to the PGT’s application to strike,
rather than on this narrow question of which application should proceed first.

[31]        
I therefore order that the PGT is at liberty to bring its application to
strike the plaintiffs’ claim in advance of the certification application.

“Skolrood
J.”