Cross-Examine First, Respond Second: Alberta Court Clarifies Class Action Certification Practice
In Martindale v Mercon Benefit Services, 2023 ABKB 35 the Court of King’s Bench of Alberta confirmed an important practice point for class proceedings in Alberta: the defendant is generally entitled to cross-examine the plaintiff on its certification record before filing any responding evidence.
This procedure is more favourable to defendants than the practice in BC, where there is no right to cross-examination, or Ontario, where there is a right to cross-examination but only after the defendant has filed a responding record. In Alberta, defendants can probe the plaintiffs’ evidence before deciding how to respond.
In Martindale, a proposed class action was filed against a benefit plan trust and other defendants by individuals claiming to be beneficiaries of the trust. The plaintiffs filed a certification record with supporting affidavits.
The defendants wanted to cross-examine the plaintiffs’ affiants before filing their certification record. The plaintiffs disagreed and brought a sequencing application. Both parties argued their proposed approach would promote judicial economy:
- The plaintiffs asserted that the objectives of class proceedings were better served by having all the evidence filed, followed by all cross-examination. They said bifurcating cross-examination would delay certification.
- The defendants countered that cross-examining the plaintiffs’ affiants before responding would allow them to file a more targeted response, or potentially even consent to certification.
In regular civil proceedings, Alberta’s Rules of Court have been interpreted to generally allow the respondent in an application to cross-examine on any affidavits filed in support of the application before having to file an affidavit in response.
Justice Graesser did not see any reason to depart from that general rule in certification applications.
In reaching that conclusion, he highlighted the purpose of certification as a screening process designed to weed out unmeritorious class proceedings. For that screening process to be meaningful, the defendant must be able to test the plaintiffs’ evidence. Cross-examination on the evidence filed for certification has a “legitimate, and possibly increasing, role” in pre-certification. While the sequential approach may take slightly longer, “additional time does not automatically equate to inefficiency.”
The Court permitted the defendants to conduct their first round of cross-examinations before filing their certification record. However, Justice Graesser emphasized that cross-examination before filing a responding record is not an inflexible rule. Parties can agree to a contrary process, or a case management judge can order one. Thus, defendants must still be prepared to argue for the efficiencies of the sequential approach based on the particular facts of their case.
Different Practices in British Columbia and Ontario
The process established in Martindale for certification applications in Alberta stands in sharp contrast to the practice in other jurisdictions. For example:
- In BC, the defendant has no right to cross-examine on the plaintiffs’ certification record without consent or leave of the court (Supreme Court Civil Rules, BC Reg 168/2009, Rule 22-1; John Doe 1 v The University of British Columbia, 2019 BCSC 673).
- In Ontario, the defendant is entitled to cross-examine the opposing party’s affiants as of right, but only after filing its own affidavits (Rules of Civil Procedure, RRO 1990, Reg 194, Rule 39.02). This general rule applies to class proceedings unless the court orders otherwise (Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 12, 35). Rule 39.02 requires parties to put their best case forward before embarking on cross-examination of the opposite party's witnesses (Shah v LG Chem, Ltd., 2015 ONSC 776, para. 43).
The Court in Martindale recognized the value of class action procedures being standardized across Canada, as there are many multi-jurisdictional class proceedings. But that was not a compelling reason to depart from the general practice in Alberta.