Unanticipated Consequences

or, as ever, be careful what you ask for, and from whom you ask it.

or, paraphrasing a certain English r&r band, you may not always get what you want, but you’ll sometimes get what you need.

Like the Buckley commercial says, though, you may not like the taste. (I have no idea how it tastes, since I’ve never tried it.)

Pennyfeather v. Timminco Limited, 2011 ONSC 4257 (July 13, 2011)

(Perell J.)

[1] The Defendants, Timminco Ltd., Dr. Heinz Schimmelbusch, Robert Dietrich, Rene Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D. Winfield and Mickey M. Yaksich, (the “Timminco Defendants”) bring a motion for particulars of the Plaintiff St. Clair Pennyfeather’s Amended Statement of Claim in a proposed class action under the Class Proceedings Act, 1992, S.O. 1992, c. C.6.

[3] In resisting the motion, Mr. Pennyfeather’s two major arguments raise doubts about the convention that a defendant in a class action is not required to deliver a pleading until after the certification motion.

[9] Thus, for the reasons that follow, I grant the motion for particulars. However, as a term of my order, I direct that after the particulars are delivered, the Timminco Defendants must deliver a Statement of Defence. As I will also explain in my Reasons for Decision, it is time to revisit the convention that defendants do not deliver a Statement of Defence before the certification motion.

[10] My experience as a case management judge in class proceedings reveals to me that as a general rule, it would be preferable that pleadings be closed before the action moves to a certification motion.

[12] In the discussion that follows, I will also discuss the consequences to the certification motion of closing the pleadings. I foreshadow to say that completing the pleadings will influence the determination of the s. 5 (1)(a) criterion for certification and, in my opinion, facilitate the hearing of the certification motion.

[37] Class actions are subject to the Rules of Civil Procedure, and there is nothing in the Class Proceedings Act, 1992that precludes defendants from pleading before the certification motion. It is informative that the convention of not closing the pleadings is not a statutory rule, and if the Plaintiff insists on the delivery of a pleading, a defendant may need to seek the permission of the court to delay the delivery of the pleading.

[39] In the case at bar, as a term of my Order requiring particulars to be brought, I am directing that the Defendants, all of them, be required to deliver their Statements of Defence. Practically speaking, this direction removes Mr. Pennyfeather’s argument that the particulars are premature. At the end of these Reasons for Decision, I will discuss the advantages of the approach of completing the pleadings before the certification motion.

I do not know if an appeal is contemplated.