Common Ground? Class Action Updates

Ontario Superior Court Confirms Presumptive Requirement for Statement of Defence Prior to Certification Motion

Common Ground? Class Action Updates

Ontario Superior Court Confirms Presumptive Requirement for Statement of Defence Prior to Certification Motion

Date: January 4, 2023

In Richard v. The Attorney General of Canada, the Ontario Superior Court recently confirmed that a defendant in an Ontario class proceeding is required to file a Statement of Defence pre-certification and in accordance with the Rules of Civil Procedure, absent special circumstances justifying a deferral.

The proposed class proceeding in this case centered on allegations arising from the federal government’s detention of non-citizen immigrants. The federal government brought a motion seeking the deferral of the filing of its Statement of Defence until after the outcome of the certification motion.

The Court dismissed the motion.

The Court’s Analysis and Decision

Justice Glustein acknowledged that there had existed a convention in class actions practice whereby parties would agree that a Statement of Defence need not be filed pre-certification. This was based on the view that it would be of little use should the Statement of Claim be reformulated as a result of certification.

However, Justice Glustein noted that this practice had been expressly rejected in Ontario, citing the Court’s decisions in Pennyfeather v. Timminco Ltd. and Sino-Forest Corporation. In those cases, Justice Perell reasoned that a complete set of pleadings enabled the parties to potentially narrow issues before the certification motion, provided useful information for the court’s assessment of the certification criterion, and prevented defendants from not delivering a Statement of Defence purely for tactical reasons.

Justice Glustein adopted Justice Perell’s comments, stating that the Statement of Defence “provide[s] important legal and factual context” for the s. 5(1)(a) analysis under the Class Proceedings Act, 1992 and the rest of the test for certification. He further noted that there was a policy rationale in preventing defendants from litigating “by ambush” at a certification motion.

Ultimately, Justice Glustein held that there was a presumption that the Rules apply with respect to pleadings in the class actions context, and a Statement of Defence should be filed prior to certification, with the onus on the defendant to show good reason why a deferral should be granted.

Applying this principle to the case at bar, Justice Glustein concluded that the federal government had not discharged its onus. The claim was not so complex that a deferral was necessary, and the time and effort spent to prepare a Statement of Defence would not be “wasted,” given the advantages of having a full and fair assessment of the issues at the certification motion. Accordingly, the Court dismissed the motion.


Employers facing a proposed class proceeding should keep in mind that there is a presumption that they will be required to prepare a Statement of Defence responding to the merits of a proposed class action, prior to the outcome of a certification motion. This presumption can be displaced, but only on a showing of good reason to do so.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©