MARTINDALE v MERCON BENEFIT SERVICES, 2023 ABKB 35
1.2: Purpose and intention of these rules
2.9: Class proceedings practice and procedure
This case involved a proposed class proceeding. The Defendants sought to question the Plaintiffs’ affiants on their Affidavits before filing their record in the Plaintiffs’ certification Application. The Plaintiffs objected. The Plaintiffs therefore brought a “sequencing” Application for direction as to how the Parties should proceed.
The Plaintiffs argued that the interests of justice and the objectives of class proceedings were better served by having all of the evidence filed, followed by Questioning. The Defendants argued that Alberta civil practice gives the Respondent in an Application the right to question the Applicant and the Applicant's witnesses on any Affidavits before filing a response.
Justice Graesser acknowledged that Rule 2.9 directs the Court to rely on the Class Proceedings Act, SA 2003, c C-16.5 to grant Orders for class proceedings in line with the spirit of the Rules. In light of that, Graesser J. held that procedure for class proceedings in Alberta should follow the foundational principles in the Rules, and should use the Rules themselves as guidelines. However, counsel and the Case Management Judge are free to determine the procedures and processes that are most likely to justly resolve the issues in a timely and cost-effective way, per Rule 1.2(1).
In the result, Justice Graesser found that some economies could be achieved by the Defendants questioning the Plaintiffs' affiants on their Affidavits before they responded to the certification Application. He therefore permitted the Defendants to conduct their first round of questioning on Affidavits before they were required to file their record in the Plaintiffs’ certification Application.View CanLII Details