Class proceedings are often brought against multiple defendants. Sometimes a plaintiff will move to certify a proceeding as a class action and is only successful against certain defendants. In Ontario, the Divisional Court recently confirmed – in much-needed explicit terms – that in such cases, the plaintiff will need to get leave if it wants to appeal the partial certification order to try to include the excluded defendants or claims.
Under s. 30(1) of Ontario's Class Proceedings Act, 1992 ("CPA"), "[a] party may appeal to the Divisional Court from an order refusing to certify a proceeding". Under s. 30(2), "[a] party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Superior Court of Justice as provided in the rules of court". That said, in Ontario, if a defendant loses a certification motion and a class is certified, the defendant must obtain leave to appeal the order. On the other hand, if a plaintiff loses a certification motion such that the action is not certified in any respect against the defendant, the plaintiff has an automatic right of appeal. It remained less clear in the jurisprudence whether a plaintiff required leave to appeal a certification order in which certification was only partially refused, with the action certified against some defendants but not others.
On October 11, 2018, in LBP Holdings Ltd. v. Cormark Securities Inc., 2018 ONSC 6050, the Divisional Court expressly confirmed that under s. 30(2) of the CPA, a partial certification order can be appealed to the Divisional Court only with leave. In the case of such partial certification orders, it will typically be the partly-successful plaintiff that seeks an appeal. In LBP, the appellant (the partly-successful plaintiff at certification) attempted to appeal the certification order that granted certification against some of the defendants, but not others. The excluded defendants responded on the appeal. A single judge of the Divisional Court quashed the appeal for want of leave. The appellant then moved to set aside the quash order before a full panel of the Divisional Court.
The Divisional Court framed the issue as follows: "what happens when an order certifies certain claims as against certain defendants and does not certify other claims against other defendants? Is leave required or is it not?" The Divisional Court made clear that leave was required and dismissed the motion. In so doing, it confirmed that despite its differing factual background, the controlling law on this issue is indeed Ludwig v. 1099029 Ontario Ltd., 2007 ONCA 266. Section 30 of the CPA is to be read "literally", not "purposefully". The Divisional Court opined that the "substance of the order" granting partial certification is indeed the granting of certification, in whatever form that may take – not the refusal of certification. Therefore, "[a]s a class proceeding has been certified, the Appellant has the right to appeal to Divisional Court with leave pursuant to s. 30(2) of the Class Proceedings Act."
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