Docket: CACV2188 Precision Contractors Ltd. Appellant (Plaintiff) - v. -, 2013 SKCA 57

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 57 Date: 2013-05-30 Between: Docket: CACV2188 Precision Contractors Ltd. Appellant (Plaintiff) - and - The Government of Saskatchewan Respondent (Defendant) Coram: Cameron, Caldwell and Herauf JJ.A. Counsel: E.F. Anthony Merchant, Q.C., for the appellant Sharon Pratchler, Q.C., for the respondent Appeal:

From: 2011 SKQB 407 Heard: February 12, 2013 Disposition: Allowed Written Reasons: May 30, 2013 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Caldwell Herauf J.A. I. Introduction [ 1 ] This is an appeal from the decision of a certification judge to conditionally adjourn a certification application pursuant to The Class Actions Act , S.S. 2001, c.

C-12.01 (the “ Act ”), pending the determination of one of the common issues in a separate proceeding outside the framework of the Act . [ 2 ] For the reasons that follow I would allow the appeal and remit the matter to the certification judge to conclude the certification hearing. II. Legislation [ 3 ] The requirements for class certification are contained in s. 6(1) of the Act : Class Certification 6(1) Subject to subsections (2) and (3), the court shall certify an action as a class action on an application pursuant to

section 4 or 5 if the court is satisfied that: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class; (

c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affecting individual members; (

d) a class action would be the preferable procedure for the resolution of the common issues; and (

e) there is a person willing to be appointed as a representative plaintiff who: (

i) would fairly and adequately represent the interests of the class; (ii) has produced a plan for the class action that sets out a workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. III. Background [ 4 ] Precision Contractors Ltd. (“PC”) applied to have a proposed action certified as a class action pursuant to the Act .

At issue was the constitutional validity of provincial legislation and/or regulations imposing provincial sales tax on construction vehicles and equipment brought into Saskatchewan from Alberta for temporary use in PC’s business. [ 5 ] There are five requirements that must be met in order to certify a class action. The certification judge ruled that the first three requirements for class certification, those set out in s. 6(1) (

a) to (

c) of the Act , had been satisfied. [ 6 ] The certification judge identified three common issues as follows: 1. Are ss. 5(9)-(9.2) of The Provincial Sales Tax Act and ss. 17.3-17.31 of The Provincial Sales Tax Regulations ultra vires the legislative or regulatory powers of the Province of Saskatchewan as being taxes that are not within the direct taxation powers conferred by s. 92(2) of the Constitution Act, 1982 ? 2. If the answer to #1 is “yes” and the impugned provisions in whole or in part are found to be unconstitutional, are class members

entitled to restitution for taxes paid under ultra vires legislation? 3. If the answer to #1 and #2 is “yes”, how should restitution be calculated and distributed to class members? [7] However, the certification judge held that a class action was not the preferable procedure—the fourth requirement forcertification set out in s. 6(1)(

d) of the Act—for addressing the constitutional validity of the legislation. [8] The certification judge held in abeyance the remaining factors in the certification process as they applied to the second and thirdcommon issues pending the resolution of the first common issue in a judicial review application to be undertaken by PC. [9] Judicial review remedies are available under

Part 52 of The Queen’s Bench Rules. In order to proceed with this action, PC wouldbe obligated to launch a new proceeding in Queen’s Bench by notice of motion that would include a claim for a declaration that thelegislation is ultra vires. IV. The decision of the certification judge relating to preferable procedure [10] The certification judge ruled that questions relating to constitutional validity of legislation are best addressed by an application fordeclaratory relief.

He also held that an application for declaratory relief would require significantly less time and expense than would berequired in the administration of a class proceeding. At para. 96 of the judgment, the certification judge noted: 96 In

summary, I find that the proposed class proceeding is ill-suited for addressing the constitutionality of the impugned PSTlegislation and/or regulations. The preferable procedure for addressing that issue would be an application for declaratory relief - a publiclaw remedy available by

summary application under

Part 52 of the Queen’s Bench Rules, s. 8 of the Constitutional Questions Act and s.11 of The Queen’s Bench Act. In my view, that approach would require significantly less time and expense than would arise in theadministration of a class proceeding. [11] In coming to this conclusion, the certification judge relied upon the decisions from the Supreme Court of Canada in Guimond v.Québec (Attorney General), (SCC), [1996] 3 S.C.R. 347, and Marcotte v.

Longueuil (City), 2009 SCC 43, [2009] 3S.C.R. 65, in holding that it was “generally undesirable” to pursue a class action to obtain a declaration of constitutional validity.

As aresult, the certification judge reasoned that PC should commence a judicial review application to determine the constitutional issue withleave to bring the certification application back after the constitutional question had been determined so the second and third commonissues could potentially be certified. [12] The certification judge was of the view that PC had the financial resources and motivation to launch a separate proceeding outsidethe Act.

His reasoning for this conclusion can be found at paras. 94 and 97 of the judgment: 94 Counsel for the plaintiff argues that unless this claim is certified as a class action, it will similarly end with no application beingbrought for a declaration of unconstitutionality. He does not explain why that would be the case. The plaintiff is a corporation withsubstantial business interests in Saskatchewan. The amount it claims is large enough to provide motivation to obtain a determination ofconstitutional validity - especially if it is done in the most cost-effective manner available.

And inviting an individual application toaddress only the constitutional issue would allow the applicant to maintain control over the process. … 97 Although I have decided that a class action is not the preferable procedure for dealing with the first of the three common issues, Iwill not dismiss this action. Rather, the more appropriate course will be to adjourn the motion for certification until the constitutionalquestion has been addressed, with leave to bring it back at that time to address the remaining issues. I note that this approach is consistentwith the procedure adopted by Wimmer J. in Horner et al. v.

Saskatchewan et al., 2008 SKQB 273, 318 Sask.R. 96. V. Position of the Appellant [13] PC submits that the certification judge erred in bifurcating the proceedings by forcing PC, as a potential representative plaintiff, tolaunch a separate action outside the framework of the Act. According to the appellant, the decision ignores the interests of the proposedclass and would likely result in PC no longer being willing to act as a potential representative plaintiff even if PC successfully launchedand received a declaration in its favour via a judicial review application.

PC makes this contention on the basis that it would have littleincentive to act as a representative plaintiff if it had already been paid any entitlement owing to it as a result of a successful judicialreview application. [14] PC also takes great issue with the holding of the certification judge that the weight of judicial authority supports the processadopted in this action over proceeding as a class action. As a result, PC contends that the certification judge’s analysis on the preferableprocedure provision should be set aside because it is flawed and the class should be certified.

VI. Position of the Respondent [ 15 ] Saskatchewan supports the decision of the certification judge in relation to the preferability analysis in its entirety. [ 16 ] Saskatchewan submits that the Supreme Court in Guimond and Marcotte has clearly established that a class action is not the preferable procedure where the central issue is a challenge to the constitutionality of a taxing statute. VII. Analysis 1. The Case Law (

i) Guimond [ 17 ] The representative plaintiff in Guimond applied for judicial authorization of a class action pursuant to art. 1003 of the Québec Code of Civil Procedure . In essence, the action sought damages against the Government of Québec pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms .

The claim for damages was founded on the premise the plaintiff and others had been imprisoned under a provincial enactment which, in providing for incarceration for non-payment of fines imposed under the Québec Highway Safety Code, was inconsistent with several provisions of the Charter and was, therefore, unconstitutional under s. 52 of the Constitution Act, 1982 .

Hence the action sought relief in the form, first, of a declaration declaring the enactment in question unconstitutional and, thence, for damages in the amount of $300 per day for each day of detention of each of the class members. [ 18 ] The application for judicial authorization of the class action eventually found its way to the Supreme Court of Canada. The court held that authorization was not warranted because “the facts alleged” did not justify “the conclusion sought” as contemplated by art. 1003(

b) of the Québec Code of Civil Procedure. In so holding, the court observed that, while it cannot be said that damages can never be obtained under s. 24(1) of the Charter following a declaration of constitutional invalidity, the plaintiff based his claim for damages on a bare allegation of unconstitutionality.

That being so, the court said there was no tenable basis for interfering with the exercise of discretion by the judge who had declined to authorize the class action. [ 19 ] In leaving the case, Gonthier J. who delivered the judgment of the court, made the following comment: 20 Having decided that [the judge of first instance] had a discretion…to deny authorization and that he exercised it reasonably, it is not necessary to consider the other paragraphs of art. 1003.

Furthermore, while it is true that it is not necessary to pursue a class action to obtain a declaration of constitutional invalidity and therefore, that it is generally undesirable to do so, it is not necessary, in this case, to canvass whether or not there resides a residual discretion to deny authorization should the constituent criteria of art. 1003 be met. [emphasis added] [ 20 ] This obiter dictum was taken in effect by the certification judge in the case before to us to stand for the general proposition that class actions as such are perforce ill-suited to the resolution of litigation seeking a declaration that an enactment is unconstitutional, even where the declaration pertains to taxation legislation and is sought not as an end in itself but as a means to the end of obtaining remedial relief by way of a legally recognized form of restitution, namely the recovery of tax paid pursuant to an unconstitutional taxing enactment. [ 21 ] With respect, I am of the opinion the obiter dictum in Guimond does not stand for such a sweeping generalization.

I think it stands for something of much more modest scope in the context, particularly, of the Québec class action regime. But even at that, I am of the opinion Guimond is distinguishable in principle from the present case inasmuch as the class action regimes in Québec and Saskatchewan differ significantly in a number of material respects. [ 22 ] For example, under art. 1003(

c) of the Québec Code of Civil Procedure a judge may authorize a class action provided, among other pre-conditions to authorization, that “the composition of the group makes the application of

article 59 or 67 [rules related to joinder of claims] difficult or impracticable”. This stands in contrast to s. 6(1) (

d) of the Saskatchewan Class Actions Act. Under s. 6(1)(d), a judge must certify a class action if, assuming the other criteria of s. 6(1) are met, “a class action would be the preferable procedure for the resolution of the common issues”. The significance of the distinction was explained by the British Columbia Court of Appeal in Nanaimo Immigrant Settlement Society v. British Columbia , 2001 BCCA 75 , 84 B.C.L.R. (3d) 208. (ii) Nanaimo Immigrant Settlement Society [ 23 ] In this case the plaintiffs applied to certify a class action pursuant to s. 4(1) of the British Columbia Class Proceedings Act .

Their action sought to recover licensing fees paid to the Government of British Columbia by various local charities engaged in gaming and lottery activity. Generally speaking, the action was founded on the premise the licensing regime pursuant to which the fees were collected was either ultra vires the enabling legislation or unconstitutional in the sense it exceeded the legislative powers of the province.

The action was certified on the bases, among others, that the case gave rise to a number of common issues, including common constitutional issues, and that a class proceeding was “the preferable procedure” for the resolution of these issues as contemplated by s.4(1)(

d) of the Class Proceedings Act . [ 24 ] The province objected, contending that a class proceeding to resolve the common issues, including the common constitutional issues, was unnecessary and that, in keeping with Guimond , the action should not, therefore, have been certified as a class action. The Court of Appeal disagreed. It held that the obiter dictum in Guimond is largely inapplicable in British Columbia by reason of material differences between the British Columbia Class Proceedings Act and the Québec Code of Civil Procedure . [ 25 ] Newbury J.A. delivered the unanimous judgment of the court. She pointed in particular to the difference between art. 1003(

c) of

the Québec Code of Civil Procedure and s. 4(1) (

d) of the British Columbia Class Proceedings Act. The former empowers a judge in the exercise of discretion to authorize a class action if, among other pre-conditions to authorization, “the composition of the group makes the application of

article 59 or 67 [rules related to joinder of claims] difficult or impracticable”. The latter requires a certification judge to certify a class action if, assuming the other criteria for certification are met, a class proceeding “would be the preferable procedure for the fair and efficient resolution of the common issues”.

At that, she cited a number of cases in which actions, while raising constitutional issues, were nevertheless certified as class actions under the British Columbia class action regime (or its equivalent), noting that these actions were certified on the basis the class procedure was the preferable procedure. [ 26 ] She then went on, with the British Columbia Class Proceedings Act in mind, to say this: 19 The Province submits that a class action is unnecessary for the resolution of the constitutional questions and others which can be resolved by a declaratory judgment.

Such a judgment would “bind the world”, unlike a judgment on the common issues in a class proceeding, which under s. 26 of the Act binds only those members of the class who do not opt out. Once the declaratory judgment has been pronounced, the Province argues, all that will be left will (or may) be the plaintiffs’ individual restitutionary claims, which are not “common” and can be brought at a later time if necessary. 20 But as Mr.

Branch responded, the question is not whether the class action is necessary—i.e. whether there are other alternatives —but whether it is the “preferable procedure” for resolving the plaintiffs’ claims. Section 4(2) of the Act states that that question involves a consideration of “all relevant matters”—a phrase that includes the practical realities of this method of resolving the claims in comparison to other methods. In the plaintiffs’ submission, what makes a class action preferable in this case are the practical advantages provided by the Act for the actual litigation process.

Some of these advantages accrue only to the plaintiffs: as Mr. Branch noted, if the claims are aggregated, contingency fee arrangements are likely to be available for the plaintiffs. The claims can be pursued by one counsel or a few counsel rather than by many. A formal notification procedure is available. Generally, it is more likely that those charities that have paid provincial licence fees in connection with bingo and casino games can pursue the matter to completion— something very few individual charities could do on their own.

Other advantages arising under the Act are beneficial to both parties—the assignment to the action of one case-management judge, and the attendant elimination of lengthy Chambers proceedings before different judges. From the Province’s point of view, none of these considerations prejudices its ability to defend the action fully, except to the extent that financial constraints on the plaintiffs are eased.

Those constraints are not an “advantage” the Province should wish to preserve. 21 In my view, these factors militate strongly in favour of certification, and are obviously consistent with the stated objectives of the Act . The fact that the threshold questions include matters of constitutional law that could be resolved in a shorter declaratory action should not, in my view, overshadow these realities. As Mr. Branch said, the obtaining of a declaration is not the plaintiffs’ primary objective; the repayment of their fees is.

Nor should the fact that restitution is being sought by individual plaintiffs outweigh the fact that a class action will move the proceedings forward to a considerable extent. [ 27 ] While it relates to the British Columbia Class Proceedings Act , and more particularly to a class action being “the preferable procedure” in order to qualify for certification under that Act , the Saskatchewan Class Actions Act is to the same general effect.

It, too, requires certification if, assuming the other criteria for certification are met, the class action is “the preferable procedure for the resolution of the common issues.” Nevertheless, I rather doubt the constitutional issues to which the action before us gives rise could be resolved “in a shorter declaratory action” as was apparently so in the British Columbia case; but otherwise I am in full agreement with the analysis in Nanaimo Immigrant Settlement Society . [ 28 ] It follows that I cannot agree with what the certification judge made of the obiter dictum in Guimond .

That said, I note that the certification judge did not draw alone on Guimond for his view of the matter. He also drew upon Marcotte . (iii) Marcotte [ 29 ] In this case the plaintiffs sought to have their action authorized as a class action pursuant to art. 1003 of the Québec Code of Civil Procedure. The action was premised on an allegation that a municipal property tax by-law was ultra vires the enabling legislation. Thus, the plaintiffs sought to have the by-law quashed and, in consequence, to recover property tax paid pursuant thereto.

The Québec Superior Court declined to grant the sought-after authorization, as did the Québec Court of Appeal. They did so on the basis the Québec class action procedure is not available to challenge the validity of a municipal by-law. The reason for this, as I understand it, is that a Québec class action in this context is pointless, in the sense of needless, having regard for the fact that a declaration of nullity obtained by an individual ratepayer in an individual proceeding is binding on all ratepayers. [ 30 ] The plaintiffs then appealed to the Supreme Court of Canada.

Five members of the court were of the opinion the appeal should be dismissed, whereas four were of the view it should be allowed. Speaking for the majority, LeBel J. (with the concurrence of Fish, Abella, Charron, and Rothstein JJ.), addressed the case from the specific perspective of the

interpretation and application of the Québec class action regime as it might apply in the realm of municipal law. He noted that, according to the Québec Court of Appeal, the effect of a declaration of nullity, which applies in respect of all ratepayers, makes a class action utterly pointless. He then said this: 28 … Although this Court has not explicitly adopted this theory, it did observe in Guimond …that it was “generally undesirable” to pursue a class action to obtain a declaration of constitutional invalidity. In the case of

an act such as a municipal by-law, the fact that a declaration of nullity applies in respect of everyone, even if it results from an individual action, is undisputed. [ 31 ] At that, he went on to address the issues of

interpretation and application to which the case gave rise and, then, to dismiss the appeal on behalf of the majority. The majority dismissed it for the primary reason the prospective class action did not satisfy the requirement of art. 1003(

b) of the Québec Code of Civil Procedure, which is to say the action did not meet the precondition to authorization that “the facts alleged seem to justify the conclusions sought.” It did not do so, because the action was so framed that, even

if the by-law were declared to be a nullity, the quashing of the by-law would not result in a right to a tax refund for the reason, amongothers, that in the circumstances of the case the claim for a tax refund appeared to be incompatible with the applicable principles ofrestitution. [32] The majority went on, near the end of its reasons for judgment, to observe that a request for a declaration that a municipal by-law isnull cannot be made by means of a class action in Québec, having regard for other procedures available to quash a municipal by-law andthe principle of “proportionality” found in art. 4.2 of the Québec Code of Civil Procedure.

Generally speaking, this principle requires themanner of proceeding to be proportionate, in terms of cost and time, to the nature and purpose of the proceeding, as well as to thecomplexity of the dispute. As such, the principle embodies the notions of good faith, balance between litigants, and the avoidance ofabuse of process. In the view of the majority, this served to cast serious doubt on the appropriateness of bringing class actions to achievethe purposes being pursued by the plaintiffs.

Indeed, the majority held that such actions are not appropriate, bearing in mind that theclass action procedure must be used properly. [33] Speaking for the minority, Deschamps J. (with the concurrence of McLachlin C.J., Binnie and Cromwell JJ.), took a whollydifferent view of the matter on all counts and would, therefore, have allowed the appeal. [34] On the whole, Marcotte is a case of considerable complexity, in both fact and law, and features an admixture of Québec municipallaw, administrative law, substantive law and procedural law, all tied into the Québec Code of Civil Procedure, especially its provisionsregarding the authorization of class actions.

As such, I am of the opinion the decision in this case is of limited application inSaskatchewan, which, of course, has its own network of procedural law, both in the realm of administrative law and otherwise, includingits own class actions regime. [35] I would not go so far as to suggest Marcotte is of no instructive value in relation to proceedings taken in this jurisdiction to quash amunicipal by-law as being ultra vires the enabling legislation. As noted by the certification judge,

Part 52 of The Queen’s Bench Rulesprovides an administrative law remedy in this context. But, contrary to the view of the certification judge in the case before us, I do notbelieve the case supports the notion that a Saskatchewan class action is perforce ill-suited to a claim for a declaration declaring aprovincial taxing enactment to be unconstitutional, not as an end in itself but as a means to obtain remedial relief by way of restitution inthe form of the recovery of tax paid pursuant to an unconstitutional taxing enactment, as in Kingstreet Investments Ltd. v.

New Brunswick(Finance), 2007 SCC 1, [2007] 1 S.C.R. 3. [36] In sum, then, I am unable to agree with the approach of the certification judge to the application in this instance of s. 6(1)(

d) of theAct and the question of whether the proposed class action was the preferable procedure for the resolution of the common issues,including the common constitutional issues. That brings me to the next questions regarding the bifurcation of the common issues. 2. Bifurcation of the common issues and the obligation on PC to commence a separate action [37] It is appropriate to deal with these two issues together.

After determining the preferability procedure in favour of judicial review,the certification judge did not dismiss the certification application; he simply adjourned the certification motion until the constitutionalquestion had been addressed with leave to bring it back to address the remaining issues. The remaining issues included the criteria in s.6(

d) and (

e) of the Act. As noted, s. 6(

d) is the preferable procedure requirement.

Section 6(

e) relates to the appointment of arepresentative plaintiff and production of a proper litigation plan.

Since the certification judge determined that a class action was not thepreferable procedure for questions related to the constitutional validity of the legislation, it is somewhat puzzling to leave the issue openfor further consideration unless there may be concerns relating to the preferable procedure for the two remaining common issues. [38] To add to the potential confusion, even a successful application via judicial review would only lead to a declaration of invalidity ofthe tax but could not require payment.

This would leave a potential common issues trial for the two remaining common issues. [39] Nor is it entirely clear that

Part 52 of the Queen’s Bench Rules would accommodate such an application. I say this for thefollowing reasons. Rule 664 lies at the heart of

Part 52. Judging by the test of Rule 664(1), the Rule as a whole is concerned with“judicial review” in the classic sense which is to say judicial review in the context of the prerogative writs and the exercise of the Courtof its supervisory jurisdiction. True, Rule 664(2)(

a) allows for the grant of declaratory relief “as collateral or alternative relief.” But thisseems to refer to relief in the context on an application for judicial review in the classic sense, namely “by way of mandamus,prohibition, quo warranto, certiorari, or to quash proceedings” as contemplated by Rule 664(1).

Hence, Rule 664(1) is of questionableapplication to proceedings directed at declaring a taxing enactment of the Legislature to be unconstitutional on the basis the enactmentexceeds the legislative powers of the Province under the Constitution Act, 1867. [40] The matter was not argued before us, so I shall say no more of it than this, but I do note that it is commonplace in this jurisdictionto commence an ordinary action in circumstances such as these, as illustrated, for example, by Central Canada Potash v. Saskatchewan, (SCC), [1979] 1 S.C.R. 42 and Amax Potash v. Saskatchewan, (SCC), [1977] 2 S.C.R. 576.

This is notto suggest that

Part 52 is necessarily inapplicable in situations such as the one before us. It is only to say that the assumption of thecertification judge that Rule 664(1) is capable of accommodating the kind of

summary application he had in mind is open to argument. [41] That said, it is a logical inference that all common issues should be resolved in one common proceeding. I might add that I couldfind no authority in the Act allowing a certification judge to order the bifurcation of the resolution of the common issues the way thecertification judge did in this case.

While the Government of Saskatchewan indicated it would refund any overpayment upon properassessment of an application to do so, the other potential class members would not have had notice of the judicial review application inorder to participate or be aware that a successful application by PC may benefit them. This leads to the importance of the noticerequirements of the class action regime. Since the certification judge determined there is an identifiable class with common issues, theprocedural order in this case leaves the class members in a state of limbo.

By this I mean that they may simply never learn of thepotential declaration of invalidity, let alone the process required to receive a refund.

[ 42 ] The certification judge’s direction also presupposes that PC will adhere to the advice of the certification judge to launch a judicial review application. This is pure speculation at this point. To commence such an action outside the confines of the Act leaves PC vulnerable to a costs award as the protection of s. 40 of the Act would be lost; not only for the application itself, but for any subsequent appeals. [ 43 ] More importantly, even if PC elected to proceed with a judicial review application and was successful, it would likely apply to have only its overpayment assessed and refunded.

There would be no incentive for PC to continue the class action as it would have no financial incentive to take the time and effort to carry through with the potential common issues trial. [ 44 ] The uncertainty created by the onus placed upon PC to commence another proceeding speaks to the pitfalls left by the procedure adopted by the certification judge in this action that affect not only PC, but the other class members in the identifiable class as well. [ 45 ] Even if PC sought judicial review, was successful and continued the class proceeding, there is no guarantee that the class action would be certified. (I note Saskatchewan is opposing the designation of PC as a representative plaintiff.) All of this points to the uncertainty created by the bifurcation of the proceedings. [ 46 ] Finally, the certification judge’s reliance on Horner v.

Saskatchewan , 2008 SKQB 273 , [2008] 11 W.W.R. 648 , to bolster his decision to bifurcate proceedings in this case is misplaced. In Horner , the certification judge adjourned the certification motion sine die to obtain further submissions upon the preferable procedure and litigation plan. After receiving further submissions, he dismissed the certification motion on the basis that a class proceeding was not the preferable procedure.

Horner is certainly distinguishable from the process adopted by the certification judge in this case where, even though he identified a more preferable procedure, he did not dismiss the certification application. [ 47 ] It is also important to mention the concern of the certification judge relating to the significant time and expense he felt would be increased by proceeding with the first common issue in a class proceeding. I note the comment of the certification judge that “On the first common issue, the facts are not in dispute”.

This may be overly optimistic (judging by the submissions before us) but assuming it is accurate, there seems no reason to suppose the matter cannot be expeditiously determined within the framework of the class action. The certification judge has significant powers in both the Act ( s. 14 in particular) and the class action rules (Part XI of The Queen’s Bench Rules ) to make orders that could reduce time and expense within the class proceeding. Assuming the facts are not in dispute, something akin to an application under Rule 188 to determine a point of law or the like may be appropriate.

If not, limits could be placed upon the discoveries to deal with a specific point of law as a threshold issue, and also on the nature of the evidence required in order to proceed with a more

summary application of the first common issue within the class proceeding. In mentioning this, I realize that to a certain extent the cooperation of counsel might be necessary. VIII. Conclusion [ 48 ] It is apparent from these reasons that I have concluded that the certification judge erred in his determination that judicial review is the preferable procedure to adjudicate the first common issue. The bifurcation of the proceedings would likely increase costs and require more by the way of judicial resources than by having all three common issues determined and dealt with at the same time and in the same process.

A common proceeding would ensure that all class members are treated fairly and have adequate notice of all aspects of the litigation. It would also treat PC fairly and not require it to launch a separate proceeding outside the framework of the Act that would expose it to costs. Accordingly, the appeal is allowed. A class proceeding is the preferable procedure in the particular circumstances of this action to determine the first common issue.

We respectfully decline the appellant’s request to certify the class action in this Court. [ 49 ] The proceeding is returned to the certification judge to determine the remaining issue in s. 6(1) (

d) and (

e) of the Act . I note the parties did not address whether or not common issues number two and three are still subject to a determination of the “preferable procedure” requirement in s. 6(1)(

d) of the Act . That question, along with the remaining criteria in s. 6(1) (e), is left for the certification judge to determine. [ 50 ] The appellant did not request costs. The issues raised on this appeal fall squarely with s. 40(1) of the Act and thus costs are not permitted in any event. DATED at the City of Regina, in the Province of Saskatchewan, this 30 th day of May, 2013. “Herauf J.A.” Herauf J.A. I concur “Cameron J.A.” Cameron J.A.

I concur “Caldwell J.A.” Caldwell J.A.