Lorne Hoedel Appellant (Plaintiff) v. WestJet, 2023 SKCA 135

Court of Appeal for Saskatchewan Docket: CACV3864 Citation: Hoedel v WestJet Airlines Ltd. , 2023 SKCA 135 Date: 2023-12-13 Between: Lorne Hoedel Appellant (Plaintiff) And WestJet Airlines Ltd. , WestJet Encore Ltd., Air Canada, Air Canada Express, Air Canada Vacation, Air Canada Rouge, and Air Canada Group Respondents (Defendants) Before: Caldwell, Schwann and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Kalmakoff On appeal from: QBG 2278 of 2016 (Sask QB), Regina Appeal heard: November 1, 2022 Counsel: E.F. Anthony Merchant, K.C., and Anthony Tibbs for the Appellant Keith Marlowe, K.C., for WestJet et al. David Neave and Rebecca von Rüti for Air Canada et al. Schwann J.A. I.

INTRODUCTION [ 1 ] This appeal raises the narrow procedural question of whether an application to summarily dismiss a putative class action commenced under The Class Actions Act , SS 2001, c C-12.01 [ CAA ], should be heard and decided prior to the certification hearing. [ 2 ] Lorne Hoedel is the plaintiff in a proposed class action commenced against WestJet Airlines Ltd., WestJet Encore Ltd., Air Canada, Air Canada Express, Air Canada Vacation, Air Canada Rouge and Air Canada Group [collectively, the respondents], in which he asserts that the respondents have engaged in collusion and price fixing, leading to the introduction of baggage fees for air travellers.

Mr. Hoedel seeks to certify his claim as a class action under the CAA . [ 3 ] Mr. Hoedel took no steps to move his action along in the two years immediately following the issuance of his statement of claim. His inaction led the respondents to file their respective statements of defence and apply for

summary judgment, dismissing Mr. Hoedel’s claim, and an order striking his pleadings. [ 4 ] After the dismissal applications were brought by the respondents, Mr. Hoedel filed three motions of his own. The first was to certify his action under the CAA , the second was to amend his statement of claim, and the third sought orders for further disclosure and to permit him to cross-examine the affiants on the various affidavits they had filed in support of the respondents’ dismissal applications. [ 5 ] The parties asked the judge to determine the sequence or order in which the numerous applications would proceed.

She concluded that the respondents’ dismissal applications should be heard prior to Mr. Hoedel’s application for certification. She further directed that Mr. Hoedel’s application to amend his statement of claim should be heard at the same time as the dismissal applications: Hoedel v WestJet Airlines Ltd. (13 July 2021) Regina, QBG No 2278 of 2016 (Sask QB) [ Sequencing Decision ]. [ 6 ] Mr. Hoedel appeals from the Sequencing Decision . For the reasons expressed below, I see no error that justifies appellate intervention. II.

GENERAL BACKGROUND AND PROCEDURAL HISTORY [ 7 ] A concise overview of the nature and history of Mr. Hoedel’s claim, and the respondents’ actions leading up to the Sequencing Decision , appears at the outset of that decision. Because of its brevity, I will repeat it in its entirety: [1] This fiat follows a sequencing hearing in a matter involving a proposed class action.

The issue is whether preliminary applications to strike or dismiss the plaintiff’s statement of claim should be heard prior to the plaintiff’s application for certification. [2] On September 14, 2014, WestJet introduced a $25 fee for the first checked bag for travel within Canada and between Canada and the United States. On September 18, 2014, Air Canada announced its own decision to introduce a $25 fee for the first checked bag for travel within Canada.

[3] On September 15, 2016, the plaintiff, Lorne Hoedel, filed a statement of claim [Claim] against the defendants, WestJet Airlines Ltd. and WestJet Encore [WestJet] and Air Canada, Air Canada Express, Air Canada Vacation, Air Canada Rouge, and Air Canada Group [Air Canada] alleging that the defendants colluded, contrary to the Competition Act , RSC 1985, c C-34 , when they each decided to introduce fees for first checked bags at approximately the same time in 2014. The Claim was amended on February 16, 2017. [4] On November 19, 2018, WestJet filed a statement of defence and an application for

summary judgment to dismiss the plaintiff’s Claim [WestJet Application]. On November 23, 2018, Air Canada filed a Statement of Defence and an application to strike or dismiss the plaintiff’s Claim [Air Canada Application]. [5] On May 31, 2019, the plaintiff filed an application to certify this action as a class action [Certification Application] pursuant to The Class Actions Act , SS 2001, c. C-12.01 [ CAA ]. [6] Thereafter, the defendants applied to the court to have the WestJet Application and the Air Canada Application heard and decided prior to the Certification Application.

For the reasons that follow, I find that the WestJet Application and the Air Canada Application should be heard prior to the Certification Application. [ 8 ] In order to address the issues raised by Mr. Hoedel on his appeal, a somewhat more detailed examination of the procedural journey of his action is warranted. [ 9 ] As noted above, Mr. Hoedel commenced his action on September 15, 2016. In November of 2018, the respondents filed their respective statements of defence. At the time of filing, WestJet also applied for

summary judgment, pursuant to Rule 7-2 of The Queen’s Bench Rules [ Rules ] (now The King’s Bench Rules ) asserting that there were no genuine issues requiring a trial and that judgment should be granted dismissing Mr. Hoedel’s action in its entirety. Air Canada brought a similar application, twinning it with an application under Rule 7-9(1) and Rule 7-9(2) to strike Mr.

Hoedel’s pleadings or to have the claim struck or dismissed on the basis that it “is scandalous, frivolous or vexatious” or “is otherwise an abuse of process of the Court” [collectively, the Dismissal Applications]. [ 10 ] The Dismissal Applications did not proceed on the December 18, 2018, return date and were adjourned sine die “to be scheduled in consultation with the Local Registrar”. As noted above, that initial skirmish led to the designation of a certification judge, pursuant to s. 4(2) (

a) of the CAA . [ 11 ] Following her designation, the judge held several case management meetings with the parties. The first such meeting was held on April 25, 2019; at which time, the judge directed Mr. Hoedel to apply for certification. A flyleaf fiat records that the judge had also urged the parties to resolve the question of whether a sequencing hearing was required and, if so, when it should take place; failing which, she stated that any party could apply for a further case management meeting. [ 12 ] Following the judge’s direction, Mr. Hoedel applied, on May 31, 2019, to certify his action pursuant to s. 4(2) (

b) of the CAA , although his application was unaccompanied by any supporting affidavits. At that same time, Mr. Hoedel also applied to amend his statement of claim to change the name of the representative plaintiff and to include a claim regarding the respondents’ introduction of a second baggage fee. [ 13 ] The next case management meeting, held on February 21, 2020, was convened for the purpose of discussing if the parties had resolved the sequencing issue. The respondents urged the judge to

schedule a date to hear the Dismissal Applications prior to Mr. Hoedel’s certification hearing. Mr. Hoedel was of the view that the order in which the applications should be heard was an arguable point. In response to their submissions, the judge made the following order ( Hoedel v WestJet Airline Ltd. (27 February 2020) Regina, QBG 2278 of 2016 (Sask QB) [ Case Management Fiat ]): [5] The local registrar will contact counsel to

schedule a hearing date (for one half day). Counsel are given leave to appear by telephone at the hearing, should they wish to do so. Once a hearing date is scheduled, the parties shall serve and file any written submissions (briefs) seven (7) days prior to the hearing date. In the circumstances of this hearing, unless the parties have any objection, it is my view that it is not necessary to

schedule an exchange of briefs: the parties may all serve and file their briefs at the same time – no later than 4:00 P.M. seven (7) days prior to the hearing date. [ 14 ] Two months later, on April 29, 2020, Mr. Hoedel applied for an order, pursuant to Rule 6-13 of the Rules , permitting him to cross-examine the respondents’ affiants on the affidavits they had filed in support of the Dismissal Applications. The face page of Mr. Hoedel’s notice of application stipulated that the date for the hearing of his application would “be determined at the Scheduling Hearing” and the time was “TBD”. The body of Mr.

Hoedel’s application used the terms scheduling conference and scheduling hearing interchangeably, which I understand to mean the sequencing hearing that was directed to be set by the judge in her Case Management Fiat . Speaking in that fiat to when Mr. Hoedel’s application would be heard, the judge wrote, “It is proposed that this application be heard during the scheduling conference or a time be set for its consideration”. [ 15 ] There is nothing further in the court record with respect to when Mr.

Hoedel’s application for cross-examination was to be heard. [ 16 ] The hearing date for the Dismissal Applications was delayed due to COVID-19 restrictions. That impediment led to another case management meeting on February 19, 2021. The flyleaf fiat from that meeting indicates as follows: “At the hearing, I will hear argument respecting the sequencing of the hearing of the defendants’ applications to strike the claim and for

summary judgment, as well as the plaintiff’s application to amend the claim (as proposed in the draft second amended statement of claim) in relation to the timing of the certification hearing” ( Hoedel v WestJet Airline Ltd. (19 February 2021) Regina, QBG 2278 of 2016 (Sask QB) at para 3 [ Hearing Fiat ]). No appeal was taken from that ruling. Notably, the judge did not mention nor assign a hearing date for Mr. Hoedel’s application to cross-examine the affiants. [ 17 ] The Dismissal Applications were eventually argued on March 25, 2021, with the Sequencing Decision rendered on July 13, 2021. It is from that decision that Mr. Hoedel brings his appeal.

III. ISSUES [18] Mr. Hoedel says the judge erred by (

a) failing to adhere to the principle that certification applications must always proceed first in putative class action proceedings; (

b) identifying the wrong legal test to determine the sequencing of applications brought in putative class action proceedings; (

c) incorrectly applying the legal test to the facts of this case; (

d) refusing to adjudicate his application for cross-examination of the respondents’ affiants on their affidavits; (

e) failing to determine his application to amend his statement of claim; and (

f) granting costs to the respondents. [19] I will deal with each ground of appeal in turn. IV. STANDARD OF REVIEW [20] A decision determining the sequencing of applications is discretionary in nature and, as such, in very general terms, attractsappellate deference. However, as recent case law in this province makes clear, the standard of review depends on the nature of the erroralleged, not the label attached to the decision being reviewed.

MacInnis v Bayer Inc., 2023 SKCA 37 [MacInnis], is instructive on thispoint: [38] … Although it is often said that discretionary decisions are entitled to deference, the fact is that an alleged error by a court in arrivingat a discretionary decision is subject to appellate review in accordance with the appellate standards of review specified in Housen vNikolaisen, 2002 SCC 33, [2002] 2 SCR 235. As is always the case, the standard of review depends on the nature of the error alleged, notthe type of decision that was made.

The standard of review in relation to alleged errors of law is correctness, where no deference is calledfor.

An appellate court may intervene in a discretionary decision if there has been an error of law, including an error in the identification orapplication of the legal criteria that govern the exercise of the discretion: “Such errors may include a failure to give any or sufficientweight to a relevant consideration” (Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161). [39] An appellate court may also intervene if there has been a palpable and overriding error of fact or of mixed fact and law: see also, forexample, 676083 B.C.

Ltd. v Revolution Resource Recovery Inc., 2021 BCCA 85 at para 30, 49 BCLR (6th) 101; Ernst & Young vKoroluk, 2022 SKCA 81 at paras 25–26; Finkel v Coast Capital Credit Union, 2017 BCCA 361 at para 55, 2 BCLR (6th) 300; AICLimited v Fischer, 2013 SCC 69 at para 65, [2013] 3 SCR 949 [Fischer]; and Lewis v WestJet Airlines Ltd., 2022 BCCA 145 at paras 30–31, 468 DLR (4th) 713.

However, an appellate court is not entitled to substitute its own decision for that of the judge merely because itwould have exercised the discretion differently: Friends of the Oldman River Society v Canada (Minister of Transport), (SCC), [1992] 1 SCR 3 at 76–77. See also Stromberg v Olafson, 2023 SKCA 67 at paras 117–121 [Stromberg]; Abrametz v Law Society of Saskatchewan, 2023 SKCA 114at paras 23–30; and Bell v Insulation Applicators Ltd., 2023 SKCA 128 at para 23. V. ANALYSIS A.

Discretion to determine the sequencing of the applications [21] The judge understood that she had the discretion to determine the sequence in which the interlocutory applications would beheard in the context of precertification, class action proceedings. In that regard, she said, “While certification applications are often heardfirst in order to promote expediency and limit repetition, the CAA does not require that a certification application must be heard first”(Sequencing Decision at para 7).

The judge drew support for her conclusion from s. 44 of the CAA, which provides that the Rules apply toclass actions to the extent that they are not in conflict with the CAA. [22] Mr. Hoedel takes the position that a certification application must be heard before any evidence-based dispositive application.This is so, he says, because of the disconnect between the purpose of

summary judgment – which he describes as being to determine aclaim on its merits – and certification – which is to determine procedurally whether the claim should be certified as a class action. Heasserts that dispositive applications, like the Dismissal Applications, are inherently incompatible with the scheme, intent and purpose ofthe CAA. Mr. Hoedel supports his position by arguing that

summary judgment prior to certification is without purpose because the tollingof limitations, pursuant to s. 43 of the CAA, means that the possibility of another class action being brought on the same set of facts by adifferent plaintiff is not precluded, which may, in turn, lead to multiple proceedings and litigation by instalment. [23] Historically speaking, Saskatchewan courts have recognized that, while discretion exists as to the sequencing of applications,generally, certification applications should be the first matter heard in any class action proceeding or that interlocutory motions should atleast be heard at the same time as certification: see, for instance, Thorpe v Honda Canada Inc., 2009 SKQB 488, 89 CPC (6th) 174; Alvesv Sunquest, 2009 SKQB 77, 77 CPC (6th) 331; and Frey v BCE Inc., 2006 SKQB 331, 33 CPC (6th) 299.

This approach was grounded ins. 4(3) of the CAA, which requires certification applications to be brought within 90 days from the time when the statement of defence wasdelivered or should have been delivered. This relatively brief window was taken to be an indicator of the Legislature’s intention that thecertification application should precede other applications.

[24] Over the years, however, courts have accepted that there are no hard edges to that approach; instead, they have recognized that,in some circumstances, it may be appropriate to make a preliminary ruling in advance of the certification hearing, including where doingso “would clearly benefit all parties or would further the objective of judicial efficiency” by narrowing the issues or “where thepreliminary motion is time sensitive” or hearing the motion is “necessary to ensure that the proceeding is conducted fairly” (Baxter vCanada (Attorney General), [2005] OTC 391 (Sup Ct) at para 14): see also Wall Estate v GlaxoSmithKline Inc., 2010 SKQB 351at para 26, 4 CPC (7th) 297, and Miller v Purdue Pharma, Inc., 2013 SKQB 193 at para 35, 421 Sask R 71.

In Medvid v Saskatchewan(Health), 2009 SKQB 198, 78 CPC (6th) 344, for example, the Court of Queen’s Bench determined that a motion to strike, based on ajurisdictional challenge, should be heard prior to the certification application because resolution of that issue would potentially dispose ofthe action completely against one of the defendants: see also Piett v Global Learning Inc., 2018 SKQB 144 at para 14, 28 CPC (8th) 417[Piett]; T.G. v Saskatchewan, 2017 SKQB 146 at paras 7 and 8, 10 CPC (8th) 205 [T.G.]; Knuth v Best Western International Inc., 2019SKQB 216 at paras 17–22, 49 CPC (8th) 100. [25] The issue of the precedence or order in which applications are heard also arose in Ammazzini v Anglo American PLC, 2016SKCA 164, 405 DLR (4th) 119 [Ammazzini], where a proposed representative plaintiff in an Ontario class proceeding applied to stay thesimilar Saskatchewan action, pending a decision on the Ontario certification application.

The operative

section in Ammazzini was s. 6(2) ofthe CAA, which provides that where a class action is commenced elsewhere in Canada, involving the same or a similar subject matter or acommon issue equivalent to one commenced in this province, a court shall determine whether it would be preferrable for some or all of theclaims to be resolved in the other jurisdiction. At first instance, the stay was granted by a Court of Queen’s Bench judge. On appeal to thisCourt, the Saskatchewan plaintiffs sought to overturn that decision by advancing the certification-first position. Much as Mr.

Hoedelcontends here, the plaintiffs in Ammazzini argued that it was impossible for the certification judge to have properly undertaken thepreferability analysis required by s. 6(2) without first coming to grips with the criteria for certification set out in s. 6(1) of the CAA. Thisargument was rejected by the Court. I find the following statement in Ammazzini to be instructive: [58] In addition, the formalistic approach advocated by the appellants would work at cross purposes with at least some of the underlyingobjectives of s. 6. More particularly, it would not promote judicial economy.

Rather, it would tend to create duplicative and unnecessaryfact-finding and legal analysis. Nor would the appellants’ approach increase access to justice in that, by obliging sometimes unnecessaryeffort, it would tend to increase the cost of legal services necessary to advance a class action file. [26] I recognize that Ammazzini was decided in the context of a s. 6(2) application. Although this is not the same situation as thematter at hand, this Court’s reasoning for rejecting the appellants’ bright line argument has broader application that, in my view, is notconfined to s. 6(2) matters.

At the very least, Ammazzini can be taken as a rejection of the certification is always first approach and asencouraging an emphasis on judicial economy when balancing the considerations under s. 6(2). [27] Appellate courts in other jurisdictions have come to a similar conclusion. For instance, the Court of Appeal in British Columbiav The Jean Coutu Group (PJC) Inc., 2021 BCCA 219, [2021] 10 WWR 606 [Jean Coutu], categorically rejected the presumption that acertification motion must be the first procedural matter to be determined.

Its reasoning is found below: [35] As noted by the judge, a presumption has developed in the case law that the certification motion ought to be the first proceduralmatter to be heard and determined in an intended class proceeding. This rule is premised in part on the basis that the brief 90-day periodfor bringing a certification application in class proceedings legislation is indicative of a legislative intent that certification precede otherpreliminary motions: Moyes v. Fortune Financial Corp. (2001), 109 A.C.W.S. (3d) 556 (Ont. S.C.J.).

It has been said in some cases that adefendant must provide a “compelling reason” or demonstrate “exceptional circumstances” to receive an exemption from the general rulethat the certification motion should be the first matter heard: [references omitted]. In Kett [2019 BCSC 2373], the Chambers judgedismissed an application for a pre-certification application on the basis that the burden of the presumption effectively requires that “a tiego to the plaintiff”. [36] Not all judges have agreed. In Pro-Sys Consultants Ltd. v.

Microsoft Corp., 2008 BCSC 1263, Justice Myers rejected the propositionthat all certification motions must be held first. In that regard he said: [15] … it is clear that each pre-certification motion must be looked at in the context of the case in question and no absolute rule can be laiddown. [16] It is true that a certification … motion is to be heard as soon as possible and as efficiently and fairly as possible. Sometimes balancingthose ends will entail the Court entertaining and deciding pre-certification motions and sometimes not. [37] I agree with Justice Myers.

Each pre-certification motion must be decided on its own individual merits. Each application must bedetermined in the context of the particular case before the court. The court’s discretion ought to be exercised in a manner that facilitatesand achieves judicial efficiency and the timely resolution of the dispute.

The factors summarized in Shaver [2021 BCSC 455] properly armjudges to determine such applications. (To avoid further confusion, I will refer to the list of relevant factors as the “Shaver factors”.) Ireject the proposition that there is a presumption that the certification motion ought to be the first procedural matter to be heard.

Thecases that have so held were, in my opinion, wrongly decided and should not be followed. (Emphasis added) Also see Ravvin v Canada Bread Company, 2020 ABCA 424 at para 51, [2021] 4 WWR 1, leave to appeal to SCC refused, . [28] Further, as properly noted by the judge in this matter, the provisions of the CAA do not dictate the bright-line propositionadvanced by Mr. Hoedel. The CAA is not a complete procedural code. This is evident from s. 44, which expressly provides that the Rulesapply “to the extent that those rules are not in conflict with this Act”. Mr.

Hoedel has not identified a conflict between the two nor do I seeone. A similar point was underscored in Stewart v Enterprises Universal Inc., 2010 ABQB 259, 99 CPC (6th) 375, where the AlbertaCourt of Queen’s Bench, referring to similar legislation to the CAA, said this: “It is more likely that the most common pre-certificationmotions, even a merits based motion like

summary judgment, can co-exist with the CPA; especially considering that the legislature did notchoose to make the CPA a complete code for class actions, but instead expressly stated that the Rules of Court apply to class proceedings

in s. 41(1)” (at para 20). [ 29 ] It follows from the jurisprudence that has developed over the years, augmented by the wording of s. 44 and the absence of any provision in the CAA that statutorily mandates a certification-first rule, that the Court of King’s Bench has the discretion to determine the sequence in which applications and motions in prospective class action proceedings are heard relative to the certification application. Chief Justice Popescul summed it up best in T.G ., when he said, “the issue to be decided is not whether the court has jurisdiction to hear a

summary judgment application before the certification application, but whether it should ” (emphasis added, at para 15). [ 30 ] To conclude, I see no error with the judge’s rejection of the proposition that certification applications must be the first procedural matter heard where proceedings are commenced under the CAA . B. The correct legal test for sequencing [ 31 ] As an alternative submission, Mr.

Hoedel contends that the judge erred in her identification of the applicable criteria that guides the exercise of judicial discretion in determining a sequencing application. [ 32 ] In the Sequencing Decision , the judge set out what she described as a non-exhaustive list, drawn from several Saskatchewan decisions, of the factors or criteria to be considered when making a determination about the sequencing of multiple applications.

She said as follows: [9] In various decisions, this Court has articulated central questions to consider when determining the sequencing of various applications relative to a certification application. A non-exhaustive list of those questions is as follows: a. Is it likely that hearing the application in advance of certification will result in multiple rounds of proceedings through various levels of courts? Will the application require a substantial record and/or cross-examination on affidavits, thereby diverting attention on resources from certification? b.

Does the application address an issue that would be canvassed at a certification hearing in any event? c. Will the court have all the evidence necessary to decide the application? d. Is it likely that the application will only dispose of some claims in the action against some, but not all, defendants? e. Could the application eliminate all claims against defendants? f. Has the plaintiff proceeded expeditiously to seek certification? and g. Is it more likely that scheduling the application to be heard after certification will promote efficiency in the circumstances?

See: Piett at para 15 ; Knuth v Best Western International Inc ., 2019 SKQB 216 at para 18 ; TG v Saskatchewan , 2017 SKQB 146 at para 8 ; Spicer v Abbott Laboratories Ltd , 2017 SKQB 271 at paras 27–29 . [ 33 ] The judge also commented on how courts across Canada have expressed the test and found them to be similar in nature: [10] Ontario and British Columbia courts have articulated similar lists of non-exhaustive factors, none of which by themselves are determinative, to assist the court in determining whether it should exercise its discretion to permit preliminary applications to be heard prior to a certification hearing.

See, for example, Cannon v Funds for Canada Foundation , 2010 ONSC 146 at para 15 ; Strohmaier v British Columbia (Attorney General) , 2014 BCSC 2078 at paras 14 , 23, 26–27; Li v British Columbia , 2017 BCSC 1616 at para 18 ; Lett v Mitsubishi Materials Corporation , 2019 BCSC 412 at paras 16 , 17, and 24, 2020 BCCA 186 at paras. 13–14 . [ 34 ] Mr. Hoedel put forward 0790482 B.C. Ltd. v KBK No. 11 Ventures Ltd. , 2021 BCSC 258 [ Ventures Ltd. ] , as a decision that, he posits, authoritatively describes the factors judges are to use when determining a sequencing of application.

In Ventures Ltd . , Walker J. summarized a roster of factors, drawn from Cannon v Funds for Canada Foundation , 2010 ONSC 146 [ Cannon ] , that should be considered when a judge is called upon to determine whether other applications should be heard before the certification hearing in a class action proceeding. In that regard, he said as follows: [24] The Cannon Factors are usefully summarized by Mr.

Justice Bowden in Li : [17] While the certification hearing is usually the first step in a class proceeding, the court may exercise its discretion to hear an application before certification where it goes to the merits of the case, narrows or defines the nature and scope of the case for certification or otherwise moves the litigation forward. There is no absolute rule in this regard and each application must be looked at individually in the context of the particular case before the court. ( Consumers’ Association et al. v.

Coca Cola Bottling Company et al. , 2005 BCSC 1042 ). [18] The relevant factors that a court may consider when determining whether to proceed with a motion or an application such as this, before a certification hearing, as described in Cannon , are as follows: 1. Will the application dispose of the entire proceeding or substantially narrow the issues to be determined? 2. What is the likelihood of delays and increased costs associated with the application? 3. Will the outcome of the motion promote settlement? 4.

Will the outcome of the motion give rise to interlocutory appeals and delays that will affect certification?

5. The interests of economy and judicial efficiency? and 6. Generally, will scheduling the application in advance of certification promote the fair and efficient determination of the proceeding? [ 35 ] In my view, the more pertinent decision on the matter of sequencing is Jean Coutu , where the British Columbia Court of Appeal distilled the relevant case law into the following, non-exhaustive, list of factors for consideration in such applications: [33] Sequencing applications have become increasingly common in proposed class proceedings.

Each proposal for a pre-certification motion must be looked at in the specific context of the case. The case law has identified a non-exhaustive list of factors to consider in a sequencing application: Lieberman et al. v. Business Development Bank of Canada , 2005 BCSC 389 at para. 16 ; Cannon at para. 15 ; Li at para. 18 ; Kett v. Mitsubishi Materials Corporation , 2019 BCSC 2373 at paras. 11–12 . Justice Mathews, in Shaver v. Mallinckrodt Canada ULC , 2021 BCSC 455 , combined and summarized the factors: [10] … Combined, the non-exhaustive list of factors is:

a) any delay by the plaintiff in proceeding to certification;

b) the extent to which a preliminary application may dispose of the whole proceeding or narrow the issues to be determined, taking into account the strength of the applicant’s arguments on the proposed applications and the breadth of the applications;

c) the cost to the parties of participating in pre-certification procedures and the potential to avoid exposing the defendants to costs of a full certification hearing if the matter will be resolved on the basis of the s. 4(1)(a) [multi-jurisdictional] requirement alone;

d) the potential for delay arising from interlocutory appeals;

e) the complexity and interplay of the issues that may arise in and between the pre-certification and certification applications;

f) whether the outcome of the motion will promote settlement;

g) the interests of economy and judicial efficiency (including whether the parties agree the motion will be determinative of the s. 4(1)(

a) aspect of the certification motion); and

h) the fair and efficient determination of the proceeding. … [45] In my view, a judge’s discretion as to sequencing ought to be guided by the approach set out in Pro-Sys through application of the Shaver factors. Each sequencing application must be determined in the context of the particular case before the court and the court’s discretion ought to be exercised in a manner that facilitates and achieves judicial efficiency and the timely resolution of the dispute. [ 36 ] As I see it, the test articulated in Jean Coutu is not markedly different from the one endorsed in Ventures Ltd . and in Cannon .

The list of relevant considerations in each decision is non-exhaustive and canvasses the same broad themes and concerns: delay, cost, the prospect of multiple rounds of proceedings, judicial efficiency, and fairness. In Piett , Barrington-Foote J. (as he then was) put it this way: “ Fairness to all parties, efficiency and judicial economy are the key considerations” (at para 15).

In short, while each formulation of the test may be worded slightly differently, they all capture the same or similar points. [ 37 ] Cast in terms of the matter before me, I conclude the judge did not err in her identification of the governing criteria. While courts in other jurisdictions may have expressed it somewhat differently, the framework used by the judge in this case was not markedly dissimilar and, frankly, as I said, accords with the scope of discretion that is described in case law from this jurisdiction.

The central point to be made here is that, regardless of the precise wording used in articulating the test, each sequencing application must be assessed on a case-by-case basis, with an understanding that the factors are not exhaustive and that no one factor is determinative. To repeat, the question is not if an application – including

summary judgment – can be heard in advance of a certification hearing, but whether it should be . C. Alleged errors in the application of the test for sequencing [ 38 ] The judge’s analysis of the applicable criteria is found in the following paragraphs from the Sequencing Decision : [11] Applying these factors, it is my view that hearing the WestJet and Air Canada Applications together, and before the Certification Application, significantly promotes efficiency and judicial economy in the circumstances of this case.

I realize that in most instances a certification application will be heard first; however, this is the exceptional case where doing so is not fair or efficient. [12] The WestJet and Air Canada Applications should be heard first because, if successful, the applications will dispose of the entirety of the plaintiff’s claim, thereby relieving all parties and the court of the significant resources necessary to run a full certification hearing.

Although I am entirely undecided on the merits of the Applications, I am satisfied that the defendants’ arguments in support of their Applications are sufficiently strong that it is worthwhile to undertake the risk of any inconsequential use of the court’s and the parties’ time if the WestJet and Air Canada Applications are ultimately unsuccessful. [13] I am also mindful of the fact that the plaintiff has delayed in advancing the Certification Application. … In contrast, the defendants filed their Applications in November of 2018 and were ready to proceed with a hearing of these Applications from that time.

While not determinative, these facts weigh in favour of hearing the WestJet and Air Canada Applications prior to a certification hearing because they negate any argument that hearing the Certification Application is urgent. [14] I am also satisfied that hearing the WestJet and Air Canada Applications prior to the certification application will not result in multiple rounds of litigation. This is because, if successful, hearing the Applications now will dispose of the litigation. This creates the

potential for a considerable saving of time and money. [ 39 ] Mr. Hoedel says the judge erred by limiting her analysis to matters of delay and efficiencies and ignoring the remainder of the factors, along with the policy-based arguments he had made. I understand Mr. Hoedel to argue that it is an error of law for a judge not to go through the list of factors in a lockstep fashion. I do not accept that proposition. [ 40 ] In responding to a similar argument in Jean Coutu , the British Columbia Court of Appeal offered this observation: “The judge’s task is not to weigh all the factors on each application.

The factors are not a checklist to be reviewed by rote. Whether any individual factor need be considered will depend on the application the judge is considering” (at para 34). The Court of Appeal went on to emphasize that each sequencing application must be determined in the context of the particular case at hand and that “the court’s discretion ought to be exercised in a manner that facilitates and achieves judicial efficiency and the timely resolution of the dispute” (at para 45). I adopt that line of reasoning. [ 41 ] Returning to the matter at hand, I agree with Mr.

Hoedel to the extent that the judge’s analysis was sparse, that it was primarily focussed on the plaintiff’s litigation delay and whether the hearing of the Dismissal Applications would promote efficiency and judicial economy. However, a fair and proper reading of the Sequencing Decision satisfies me that she, nonetheless, took several other factors into consideration. For instance, she commented on whether the Dismissal Applications had the potential to dispose of the entirety of Mr.

Hoedel’s claim and relieve the respondents from a significant expenditure of resources: i.e., the potential that only some of the claim will be addressed (the fourth factor in paragraph 15 of Piett ) or the potential for multiple rounds of litigation (the first factor in paragraph 15 of Piett ). [ 42 ] As noted, I cannot accede to Mr. Hoedel’s argument that the judge failed to consider the factors that bore on the exercise of her discretion in this case. As it appears the judge took all the relevant factors into account, Mr.

Hoedel’s appeal reduces to a disagreement with how the judge weighed those factors and a complaint about the sufficiency of her reasons. However, neither of these grounds are set out in his notice of appeal. That said, in answer to the underlying concerns he raises, I simply point out that disagreement over how the judge weighed the relevant factors in the context of the matter before her does not give rise to an error of law but, rather, a question of mixed fact and law.

Absent a palpable and overriding error – which has not been made out – appellate intervention is not warranted. [ 43 ] As to the question of the sufficiency of the judge’s reasons, I agree that detailed reasons are often desirable, and, in this case, they were sparing. However, in assessing the sufficiency of reasons, an appellate court is to undertake a functional, context-specific approach: Scobie v Thiessen , 2021 SKCA 47 at para 33 , 54 RFL (8th) 256, and Hill v Hamilton-Wentworth (Police Services Board) , 2007 SCC 41 at para 101 , [2007] 3 SCR 129.

In Bhagaloo v M2 Construction & Development Ltd. , 2021 SKCA 168 , [2022] 3 WWR 179, this Court said as follows: [33] The purpose of reasons is fulfilled if they show why the trial judge made the decision that was made, not how it was done: see R.E.M. [2008 SCC 51] at para 17, and R v R.I.G. , 2020 SKCA 26 at para 74 . A trial judge is not obligated to “refer to or resolve every inconsistency raised by the defence in the course of his or her reasons” ( R v R.A. , 2017 ONCA 714 at para 45 , 421 DLR (4th) 100, aff’d 2018 SCC 13 , [2018] 1 SCR 307).

Nor is a judge required to detail findings on each piece of evidence or controverted fact, “so long as the findings linking the evidence to the verdict can be logically discerned” ( R.E.M. at para 20). Sufficiency of reasons focusses on whether the reasons disclose what essential facts were found by the judge and why they arrived at the result they did. (Emphasis in original) [ 44 ] In short, I am satisfied that the judge’s reasons in this case readily permit a reader to understand what she decided and why she came to that decision in a fashion that allows for meaningful appellate review.

Her reasons fulfill the purpose for which they were given. [ 45 ] Setting aside those concerns, I take Mr. Hoedel to assert three principal errors in the judge’s application of the test that governs a determination of the sequencing of applications. [ 46 ] First, Mr. Hoedel claims the judge failed to consider the futility of the

summary judgment process, which, he argues, plays into the prospect of multiple rounds of litigation and even further delay. Mr. Hoedel suggests that allowing

summary judgment to occur in a putative class action prior to its certification will be futile because, even if the claim were dismissed, there is nothing that would stop others from commencing a new action on the same set of facts, since the new plaintiff would not be bound by the dismissal order. [ 47 ] This argument is premised on Mr. Hoedel’s

interpretation of how limitations periods are affected or tolled by s. 43 of the CAA . That same argument was put forth, but rejected, in Huard v The Winning Combination Inc. , 2022 SKCA 130 , where Leurer J.A. (as he then was) observed, “no court has definitively ruled on whether the effect of s. 43 is to toll the running of limitation periods applicable to the claims of putative class members when the proposed class action is not ultimately certified” (at para 67). In short, Mr. Hoedel’s argument is no more than a theory, built on conflicting case law.

In any event, nothing prevents him from raising that argument when the Dismissal Applications are considered on their merits. [ 48 ] The second plank to Mr. Hoedel’s argument rests in his assertion that he is prejudiced by the fact the judge directed that the Dismissal Applications be heard without affording him the opportunity to complete cross-examinations of the respondents’ evidence and to obtain further document disclosure. Mr. Hoedel explained this concern in his factum in this way: 67. … This denial of procedural fairness, an error of law[,] attracts a correctness standard.

The error derives from breach of the procedural safeguards afforded by Practice Directive 9 and the broader failure to recognize more generally that cross-examination and document disclosure are fundamental and required steps in

summary judgment applications which are merits determinations and which must be determined on the basis of a full evidentiary record. (Emphasis in original) [ 49 ] For the reasons expressed under my review of the next ground of appeal, I conclude that the record does not provide a proper grounding for Mr. Hoedel’s argument, and, as such, it must be rejected.

[50] Third, Mr. Hoedel strenuously argues the point that

summary judgment applications are incongruous with class actionproceedings; particularly where, as here, the application will be decided on factual and evidentiary grounds. The following excerpt fromhis factum expands somewhat on this argument: 23. The third issue is that precertification

summary judgment sits uneasily into The CAA framework because it results in a merits-baseddetermination. Certification is a consideration of some basis in fact as the first procedural step, in a procedural process – certification,while

summary judgment is a fact-based determination, that generally does not even allow evidence on information and belief, or, as here,on second hand hearsay from a lawyer. 24. The Court is not permitted to make merits-based findings at certification as to the claims of the named plaintiff(s), proposedrepresentative plaintiff(s), or the class members themselves. (Italics in original, footnotes omitted) [51] Mr. Hoedel is not wrong to suggest that there is case authority for the proposition that

summary judgment is the sort ofapplication that sits uncomfortably in a class action context: “The appropriateness of hearing

summary judgment motions requiringevidence has been the subject of mixed decisions on ‘sequencing’” (Mathew Good and Ward Branch, Class Actions in Canada, loose-leaf(Rel 2023-2) 2d ed (Toronto: Thomson Reuters, 2000) at § 5:6). The authors of that text point to Holmes v London Life InsuranceCompany (2000), (ON SC), 50 OR (3d) 388 (Sup Ct); Royster v 3584747 Canada Inc. (Kmart), 2001 BCSC 153, 12CCEL (3d) 259; Consumers’ Association of Canada v Coca-Cola Bottling Company, 2005 BCSC 1042, [2006] 1 WWR 701, leave toappeal to BCCA refused 2007 BCCA 356, leave to appeal to SCC refused, ; and Li v British Columbia, 2017 BCSC1616, [2018] 3 WWR 415, as examples of cases where

summary judgment applications, which required evidence, were allowed to precedecertification. There are, of course, cases where courts have reached the opposite conclusion. For instance, see Piett and Martin vAstraZeneca Pharmaceuticals PLC (2009), 83 CPC (6th) 79 (Ont Sup Ct). In very general terms, as noted by the authors of Class Actionsin Canada, “Courts have been more willing to allow pure pleadings motions that have the capacity to end the action completely to proceedin advance of certification” (at § 5:6).

That said, they go on to note, “The possibility that precertification motions will result in a piecemealconsideration of the certification requirements remains of significant concern to the courts, even if clothed in a seemingly dispositivemotion such as a motion to strike” (at § 5:6). [52] The point to be drawn from these authorities is simply this: while certification is usually the first step in prospective classaction proceedings, a court retains the discretion to hear and determine an application prior to certification, including one addressing themerits of the claim.

Each application must be considered in the context of the matter put before the court. [53] Finally, under this ground of appeal, Mr. Hoedel asserts that the judge effectively and pre-emptively decided the first step inthe

summary judgment application and, thus, partially determined the merits of the

summary judgment application.

This error is said to beembedded in the following passages from the Sequencing Decision: [12] … Although I am entirely undecided on the merits of the Applications, I am satisfied that the defendants’ arguments in support oftheir Applications are sufficiently strong that it is worthwhile to undertake the risk of any inconsequential use of the court’s and theparties’ time if the WestJet and Air Canada Applications are ultimately unsuccessful. … [15] Finally, I am confident that I have a sufficient understanding of the nature and particulars of the proposed class action so as to hearand determine the WestJet Application and the Air Canada Application prior to the Certification Application: Ammazzini at paras 56–68;and Ravvin v Canada Bread Company, Limited, 2020 ABCA 424.

The parties have all filed comprehensive affidavits in support of theirpositions on the issues in question. There is sufficient evidence before the court to determine the issues raised by the Applications. (Emphasis added) [54] Respectfully, Mr. Hoedel operates from a misunderstanding of what the judge meant when she said that she had a “sufficientunderstanding of the nature and particulars of the proposed class action so as to hear and determine the WestJet Application and the AirCanada Application prior to the Certification Application” (at para 15).

I take her to have intended no more than that she had a good gripon the nature and particulars of the proposed class action certification such that, as she pointed out, “it is worthwhile to undertake the riskof any inconsequential use of the court’s and the parties’ time if the WestJet and Air Canada Applications are ultimately unsuccessful” (atpara 12). Put another way, I do not interpret the judge to have stated or even implied that she had determined the genuine issue question,being the first step in the

summary judgment application. [55] The judge’s comments accord with this Court’s decision in Ammazzini, where the appellants had argued that the certificationjudge erred by failing to decide the certification issue before asking whether the action should be stayed. Again, while I realize thatAmmazzini involved an application under s. 6(2) of the CAA, and not a

summary judgment application, this same logic applies here: [57] In order to make the determination contemplated by s. 6(2), a judge will need to have a very firm grip on the nature and particularsof the proposed class action. However, this is something different than demanding that he or she work through all of the particulars ofs. 6(1) (cause of action, identifiable class, common issues, preferable procedure and representative plaintiff) and satisfy himself thatcertification is appropriate before turning to s. 6(2). [56] I agree with Mr.

Hoedel that the following statement, made by the judge, is potentially more problematic: “There is sufficientevidence before the court to determine the issues raised by the Applications” (Sequencing Decision at para 15). It raises the obviousquestion of whether the judge had already determined that there was no genuine issue for trial. Had the judge done that, it would haveconstituted an error. [57] However, examining the reasons in their entirety satisfies me that the impugned sentence does not reveal an error. At most, itwas an imprudent choice of words. Mr.

Hoedel’s argument must also be assessed in light of the Supreme Court’s instruction not to parsereasons but to review them “generously and as a whole, bearing in mind the presumption that trial judges know the law” (Barendregt v

Grebliunas , 2022 SCC 22 at para 104 , 469 DLR (4th) 1). As I see it, the judge in the matter at hand was laser-focussed on issues of efficiency, judicial economy, delay and whether, in her words (repeated here for emphasis), “it is worthwhile to undertake the risk of any inconsequential use of the court’s and the parties’ time if the WestJet and Air Canada Applications are ultimately unsuccessful” (at para 12).

In broad terms, this required her to eyeball the relative strength of the Dismissal Applications to get a general sense as to whether it would be a waste of the court’s time to proceed with them in advance of certification. [ 58 ] To conclude, I see no error with how the judge applied the test. While her reasons may have been brief, I am satisfied that she considered all the factors that were relevant to the matter at hand and did not pre-emptively decide the first prong of the

summary judgment test. Ultimately, this was a discretionary, procedural order made by the designated certification judge who can be taken to have had some familiarity with the parties and the conduct of the proceedings. I see no basis for appellate intervention. D. Mr. Hoedel’s application for cross-examination [ 59 ] Mr. Hoedel says the judge erred by refusing to adjudicate his application to cross-examine the respondents on their affidavits and for further and better disclosure. While Mr.

Hoedel makes some worthwhile points about the necessity of a full record and the need to put his best foot forward before the Dismissal Applications are heard, as previously discussed and expanded upon below, I conclude that the judge did not refuse to decide his application. It remains open to Mr. Hoedel to bring it forward prior to the hearing of the Dismissal Applications. 1. Procedural backdrop to the cross-examination issue [ 60 ] While this litigation has been percolating for a number of years, I find it useful to return to my earlier

summary of key events that bear on Mr. Hoedel’s argument under this ground of appeal. [ 61 ] In November of 2018, the respondents applied, inter alia, to strike the pleadings and for

summary judgment. Those applications were scheduled to be heard on December 18, 2018, but were subsequently adjourned sine die. No reasons were given for the adjournment, but it can be inferred that it was because a certification judge had not yet been designated, pursuant to s. 4(2) of the CAA . That was a step that only Mr. Hoedel could have initiated, but he had not taken it in the two years following the filing of his claim. [ 62 ] After the certification judge was designated, her first order of business was directing Mr.

Hoedel to serve and file his application for certification by May 31, 2019, and for the parties to discuss the sequencing of their various applications. When they were unable to reach an agreement respecting the order in which the matters would proceed, the judge issued the following fiat on February 27, 2020: “I have determined that I will

schedule a half day for argument respecting whether the applications to strike should be scheduled for hearing and determined before the certification application is heard” ( Case Management Fiat at para 4). [ 63 ] As noted above, Mr. Hoedel applied for an order pursuant to Rule 6-13 permitting him to cross-examine the respondents’ affiants on affidavits they had filed in support of the Dismissal Applications. The return date was “to be determined at the Scheduling Hearing” and the time was noted as “TBD”. There is nothing further on the record with respect to when Mr. Hoedel’s application would be heard.

Interestingly, in the February 19, 2021, Hearing Fiat , the judge outlined the specific matters that would be heard at the time of the sequencing hearing, but Mr. Hoedel’s application was not one of them: [3] At the hearing, I will hear argument respecting the sequencing of the hearing of the defendants’ applications to strike the claim and for

summary judgment, as well as the plaintiff’s application to amend the claim (as proposed in the draft second amended statement of claim) in relation to the timing of the certification hearing. [ 64 ] There is no mention of Mr. Hoedel’s application to cross-examine the affiants in this fiat and no indication from the court file that he subsequently raised the matter. 2. Positions of the parties [ 65 ] Mr. Hoedel asserts that the judge’s refusal to address his application for cross-examination and document disclosure constituted a denial of procedural fairness that gives rise to an error of law.

His argument is built around an alleged breach of the procedural safeguards set out in General Application Practice Directive #9, “Scheduling of

Summary Judgment, Set Aside and Judicial Review Applications”, GA-PD #9 (Sask KB, 1 November 2023) [Practice Directive #9], and the judge’s failure to identify the case law that is said to support the idea that cross-examination and document disclosure are required measures in

summary judgment applications. He relies on Churko v Merchant , 2019 SKQB 307 [ Churko ], and Distinct Homes Inc. v Anindo , 2020 SKQB 158 [ Distinct Homes ], in support of this argument. [ 66 ] Mr. Hoedel maintains that he had emphasized the importance of cross-examination in relation to

summary judgment applications in argument before the judge at the time of the sequencing hearing. Cross-examination, he says, would assist the court in resolving the issues on all three applications, as the evidence gathered would aid the judge in determining whether to proceed with

summary judgment or the application to strike the pleadings, and, ultimately, help her assess the issues on their respective merits. His root complaint is that the judge completely overlooked his application in the Sequencing Decision , although he can also be taken to have parenthetically argued that the cross-examination process would increase the delay. [ 67 ] The respondents see the issue quite differently. They underscore the fact that the significant delay in this action rests solely at the feet of Mr. Hoedel.

Regardless of his delay, they say nothing in the Sequencing Decision indicates that the judge has closed the door on hearing Mr. Hoedel’s application before the Dismissal Applications are heard. [ 68 ] While Mr. Hoedel raises several concerns with what he characterizes as the denial of procedural fairness and the prejudice that flows from it, I conclude that his arguments cannot succeed for the simple reason that his application was not denied by the judge in the Sequencing Decision because it was not before her.

[ 69 ] As the record reflects, the scope of issues to be determined at the time of the sequencing hearing was clearly and unambiguously set out in the Hearing Fiat . Mr. Hoedel’s application for cross-examination and further disclosure was not on that list. Relatedly, given that Mr. Hoedel’s application was (of his own choosing) slated for a date to be determined, it stands to reason that if he had wanted the judge to adjudicate his application at the time of the sequencing hearing, he needed to take the necessary steps to have it placed before her.

The record suggests that no such steps were taken. [ 70 ] Given my conclusion, it is unnecessary to address Mr. Hoedel’s arguments about an alleged breach of Practice Directive #9 and the implication of decisions such as Churko and Distinct Homes , which speak to the importance of cross-examination in the

summary judgment process: see also Ter Keurs Bros. Inc. v Last Mountain Valley (Rural Municipality) , 2019 SKCA 10 at para 28 , 429 DLR (4th) 269, and Regional Tire Distributors (Saskatchewan) Inc. v Quality Tire Service Ltd. , 2016 SKQB 411 at para 8 . [ 71 ] The judge did not rule on Mr. Hoedel’s application to cross-examine the respondents on their affidavits. Although there may be some merit to the suggestion that efficiency and judicial economy would have been best served by having Mr. Hoedel’s application heard at the same time as the sequencing application, that arrangement was in Mr. Hoedel’s hands.

There is nothing in the Sequencing Decision , the CAA or the Rules that restricts his ability to pursue that relief before the Dismissal Applications are heard. Ultimately, it remains open to him to take the necessary steps. [ 72 ] In

summary, I find the judge did not err by refusing to hear Mr. Hoedel’s application for the simple reason that he had not put it before her at the time of the sequencing hearing. E. Failure to amend the statement of claim [ 73 ] Mr. Hoedel applied in early 2021 for leave to amend his first amended statement of claim: including by substituting the proposed representative plaintiff and by expanding the claim to encompass the additional fee imposed for a second checked bag that took effect in 2018.

The respondents were prepared to consent to the change in plaintiff but opposed the balance of his proposed amendments. [ 74 ] The judge dealt with this issue in the body of the order by stating simply, “The plaintiff’s application to amend the Statement of Claim will be heard at the same time as the WestJet Application and the Air Canada Application” ( Sequencing Decision at para 17). [ 75 ] Mr.

Hoedel asserts that there is no conceivable justification for having deferred the determination of that issue and that putting it off to when the Dismissal Applications are heard creates uncertainty for the parties who will not know whether the Dismissal Applications will be determined on the basis of the first amended statement of claim or on the basis of the proposed second amended statement of claim. He says this uncertainty places each side in the unfavourable position of having to prepare their

summary judgment materials to cover off the possibility that his proposed amendment will be allowed. [ 76 ] The respondents resist the application by arguing that there is no basis to grant the amendment. They say firstly that it is futile – a mere fishing expedition – and, therefore, unlikely to succeed. Second, the respondents say that it is time-barred because it was brought outside of the applicable limitation period. [ 77 ] I acknowledge that, as a matter of general practice in this province, amendments are allowed whenever they can be made without injustice to the other side. However, Mr.

Hoedel’s arguments – and, for that matter, the respondents’ position – drill down to the merits of the application, which was not the issue before the judge. She simply determined sequencing. [ 78 ] At the risk of repetition, this was a discretionary decision made by the designated certification judge who was aware of the essence of the proposed class action and seemed to have a solid grip on the parties’ respective positions regarding the timing of the applications. While I have some sympathy for Mr. Hoedel’s position – in the sense that he should be able to know the case he has to meet on the

summary judgment application – he is the author of his own misfortune. The Dismissal Applications were brought in 2018, yet Mr. Hoedel did not apply to amend his statement of claim until the eve of the respondents’ application. Giving effect to Mr. Hoedel’s position would have the potential to bring about an endless stream of similar applications, thereby causing further delay. More importantly, though, Mr. Hoedel has not identified any error, beyond suggesting that the timing of when his amendment application would be heard should have been resolved differently.

Absent a demonstration of error, an appellate court ought not to interfere. F. Costs decision [ 79 ] The judge awarded costs against Mr. Hoedel. Her reasoning in this regard is conclusory and consists of one line: “WestJet and Air Canada shall each have the costs of this sequencing application” (at para 17). [ 80 ] Mr. Hoedel asserts that the judge erred in making this order because he was never afforded the opportunity to address the issue of costs in a substantive way before the decision was rendered. Mr.

Hoedel also makes a number of more general arguments, including that the judge ordered costs reflexively without considering the relevant principles and, most particularly, without regard for how the award relates to potential class action proceedings. [ 81 ] I am not persuaded by Mr. Hoedel’s arguments. [ 82 ] These same arguments were advanced, but rejected, by this Court in MacInnis . There, represented by the same lawyers who represent Mr. Hoedel, the proposed representative plaintiff had her certification application dismissed with costs.

On her appeal from that award, she, too, argued that the costs were “awarded reflexively, without considering the relevant principles, particularly without regard to how the award relates to class proceedings” (at para 124).

This Court characterized those arguments as straying “heavily into policy considerations” and said that accepting her submissions “would, in effect, result in a ruling that costs should rarely, if ever, be awarded against a proposed plaintiff after an unsuccessful certification application” (at para 124). [ 83 ] MacInnis is instructive for its review of the legislative history of costs in a class action context, with emphasis on the legislative shift that occurred in 2015, which transformed Saskatchewan from a no-costs jurisdiction into one where costs can be ordered in class

proceedings. The Court made the following observations in relation to the legislative debate that took place at the time: [129] In discussing these amendments at the Standing Committee on Intergovernmental Affairs and Justice, Attorney General Gordon Wyant stated, inter alia, the following (Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard) , Committee (IAJ) 27th Leg, 4th Sess (20 April 2015) at 700): Clause 1 Hon. Mr. Wyant: … Madam Chair, this legislation will provide discretionary authority to the courts to award costs in class action proceedings.

Currently The Class Actions Act limits the court’s ability to award costs to specific circumstances such as matters where there has been a frivolous or abusive conduct by one of the parties. In practice this creates a very high threshold and it’s not commonly met.

The proposed changes will restore the court’s regular discretion to award costs in class action proceedings, so in addition to the regular factors that the court takes into account when assessing costs as set out in the rules of court, the changes will grant the courts additional authority to consider special factors including the public interest, whether an action involves a novel point of law, or a test case or access to justice. … Hon. Mr. Wyant: — Well there’s been a number of other jurisdictions in the country that have moved away from no-cost jurisdictions.

There’s really, after Saskatchewan, only going to be two provinces that have a no-cost jurisdiction. Three, sorry. … We believe this is a more balanced approach. It allows the court to continue with or to re-establish its discretionary authority when it comes to costs and at the same time recognize issues that are important I think to us in terms of access to justice.

So this is really just a balancing, from our perspective, on the cost issue. [130] It is evident from the wording of the old and new sections, and the discussion by Attorney General Wyant, that the current provisions were meant to restore discretion to certification judges to enable them to award costs in a manner similar to other civil matters, albeit with the additional guidance set out in s. 40(2) of the CAA . [131] The amended language of s. 40 of the CAA does not limit an award of costs nor suggest that they should only rarely be ordered.

The amendments sought to bring proposed class actions back into the regular costs regime and to permit judges to exercise their discretion to make costs awards, where appropriate. Awards of costs, including those provided for in class actions, are discretionary decisions that are subject to deference: Yashcheshen v Teva Canada Ltd. , 2022 SKCA 49 at para 127 , [2022] 8 WWR 60; Thomas v Saskatchewan Indian Gaming Authority Inc ., 2021 SKCA 164 at para 45 , 76 CCEL (4th) 37; and Holmes v Jastek Master Builder 2004 Inc ., 2019 SKCA 132 at para 200 , [2020] 6 WWR 386 .

While s. 40(2) sets out some factors that a certification judge may take into account, such consideration is not mandatory. [132] A canvas of recent Court of King’s Bench decisions in Saskatchewan indicates that costs have been awarded when a certification application is dismissed : see, for example, Piett v Global Learning Group Inc ., 2021 SKQB 232 , 2021 DTC 5115 [ Piett ]; Kish v Facebook Canada Ltd. , 2021 SKQB 198 [ Kish ]; and M.R.L.P. v Canada (Attorney General) , 2020 SKQB 101 .

However, costs should not simply “reflexively follow the cause” in a class action ( Amamazzini v Anglo American PLC , 2016 SKCA 164 at para 84 , 405 DLR (4th) 119). [133] It is extremely common for costs to be awarded in civil matters with very brief and conclusory reasoning by a trial judge or a Chambers judge. This includes class action proceedings: see, for example, Piett at para 153 and Kish at para 91 . The related principles are so well-known, and are applied so frequently by judges, that, absent something out of the ordinary, there is generally no need to provide substantial reasons for an award of costs.

The observations of Jackson J.A. in K.R. v J.K ., 2018 SKCA 35 , addresses this issue directly; there she stated, “A lack of reasons for costs orders is not a justification to intervene on its own.

Indeed, in my experience, extensive reasons are rarely given when a costs order is made” (at para 101): see also Thomas v Saskatchewan Indian Gaming Authority Inc. , 2021 SKCA 164 at paras 44–45 , 76 CCEL (4th) 37. [134] … the Chambers judge was clearly aware of the legislative amendments that shifted Saskatchewan from a no-costs jurisdiction to one where costs can be awarded against a plaintiff after an unsuccessful certification application.

He also would have been aware of the costs provisions contained in The Queen’s Bench Rules , applicable pursuant to s. 44 of the CAA , and the wealth of jurisprudence that has examined the relevant criteria for awarding costs in other types of actions. Despite her extensive submissions, Ms. MacInnis has not persuaded us that the Chambers judge made an error in the exercise of his discretion with regard to the order of costs.

The respondents were wholly successful at the certification application, and there was nothing unique about this matter that distinguished it from other prospective class actions with regard to the public interest in pursuing the litigation, novel points of law, the existence of a test case, access to justice, or any other factor. (Emphasis added) [ 84 ] Although MacInnis dealt with costs in connection with a failed certification application, I see no principled reason why this Court’s

interpretation of the CAA , as set out above, would not apply equally to the matter at hand. [ 85 ] To conclude, the amendments to the CAA contemplate a measure of judicial discretion in the ordering of costs. This Court has been clear that extensive reasons are not required when doing so. The judge’s order withstands appellate scrutiny. [ 86 ] Neither do I accept Mr. Hoedel’s contention that the fact that the judge made the costs order without receiving oral submissions was an error that resulted in procedural unfairness. In Mr.

Hoedel’s written argument filed in the Court of Queen’s Bench, he identified Ammazzini as standing for the proposition that costs do not reflexively follow the event under the CAA and submitted that no costs should be ordered on the sequencing application. Notwithstanding the manner in which he chose to address costs before the judge, Mr. Hoedel now says procedural fairness dictates that he be able to make oral submissions beyond that singular statement set out in his written material. [ 87 ] I fail to see how Mr.

Hoedel’s decision to limit his written argument on costs to one line can properly ground a finding of

procedural unfairness. If Mr. Hoedel had further submissions to make on costs, he should have said so at the time of the sequencing hearing or sought leave to file something further following it. That he did not do so cannot be transformed into an error on the part of the judge. [ 88 ] To conclude on the costs issue, I see no error with that part of the Sequencing Decision . The costs order is consistent with the current legal landscape in Saskatchewan.

As noted, in 2015, Saskatchewan was transformed from a no-costs to a costs jurisdiction in class action proceedings, and thus, it was within the power of the judge to exercise her discretion in the way that she did in this matter. Furthermore, Mr. Hoedel had ample opportunity to address costs at the sequencing hearing and, in his written submissions before this Court, admits that he did not do so. No procedural unfairness arose from his choice to limit his submissions in the manner that he did. [ 89 ] There is no basis for appellate intervention on the costs order. VI. CONCLUSION [ 90 ] The appeal is dismissed.

The respondents shall have one set of costs, calculated in the usual way. “Schwann J.A.” Schwann J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.