The Appellants appealed the dismissal of their proposed Class Action as being beyond the “ultimate” limitation period set out in section 3(1)(b) of the Limitations Act, RSA 2000, c L-12. The Appellants argued that limitations issues are “overwhelmingly” decided by a full Trial rather than by Summary Judgment. Further, the Appellants argued that the Legislature had created what amounted to a statutory “direction” that all other matters are to be held in abeyance pending Certification. The Court did not accept these arguments, noting that the Class Proceedings Act, SA 2003, c C-16.5 does not preclude a Judge from exercising his or her discretion to hear and decide a Summary Judgment Application prior to Certification.

The Court further noted that “the mere fact that a claim is advanced by way of a class proceeding does not endow it with special status allowing it to survive where the same claim would otherwise be doomed”. More particularly, the Claim “remained” subject to all the tools furnished by Part 7 of the Rules of Court for resolving claims without a full trial, including summary judgment”. With respect to the test for Summary Judgment, the Court noted that Summary Judgment is no longer to be denied solely on the basis that the evidence discloses a triable issue. The question to be applied is whether there is any issue of merit that genuinely requires a Trial, or whether the Claim is so compelling that the likelihood of success is such that summary determination is suggested. The Appeal from the Chambers Judge’s Decision on Summary Judgment was dismissed.