Notable Procedural Developments

The last year has seen a number of significant procedural decisions and developments that have the potential to shape the defence of class actions in 2026 and beyond. Below are some of the more significant developments and takeaways for defendants.

Federal Court Declines to Amend its Class Action Rules and Expresses Intention to be an Attractive Forum for National Class Actions

In 2024, the Federal Court Rules Committee launched a global review to consider, among other things, whether the Federal Court should amend its rules relating to class actions to align with Ontario’s amended legislation, including the requirement that an action only be certified if common issues predominate over individual ones. In December 2025, the Rules Committee released its report and declined to make any changes. It noted opposition to introducing a predominance requirement and commented that "any amendments should aim to preserve the attractiveness of the Federal Courts as a forum for national class actions".  The Rules Committee's decision means that defendants can expect Ontario and Prince Edward Island (which, to date, is only other Canadian jurisdiction to pass similar legislation to Ontario's) to continue to be the only Canadian jurisdictions with a predominance requirement at certification.

Ontario Court Confirms a Strict Approach to Dismissal for Delay

Ontario’s 2020 amendments to its class proceedings legislation (CPA) included the addition of section 29.1, which mandates dismissal of a class action for delay if, one year from commencement, the plaintiff has not taken a prescribed step, one of which includes filing a “final and complete” certification motion record. In Kalair v. Naimark, 2026 ONSC 829, in which Bennett Jones acted for the defendants, the court dismissed a class action under section 29.1 even though the plaintiff delivered a certification motion record within one year of the commencement of the claim. However, the motion record did not include the required litigation plan and therefore could not be "final and complete" under section 29.1. The plaintiff’s attempt to deliver a litigation plan later, attached to a factum, was not sufficient. Because the plaintiff had taken no other step prescribed by section 29.1, the action was dismissed. Naimark provides useful guidance to defendants to carefully scrutinize whether the plaintiff has satisfied section 29.1.

Ontario Court Reiterates that the Representative Plaintiff Must be Engaged in the Litigation

The dismissal motion in Kalair was brought alongside the plaintiff’s motion to substitute himself for two new proposed representative plaintiffs. The court refused the substitution because cross-examination established that the proposed replacement plaintiffs were "almost entirely disengaged from the claim that they are supposedly steering" and that plaintiff’s counsel was "essentially litigating on his own". Kalair provides useful guidance on the representative plaintiff criterion and reinforces that it is a meaningful role.

British Columbia Court Opens the Door Wider for Defendants to Bring Pre-Certification Applications

Ontario’s CPA generally requires that potentially dispositive motions be heard before certification. British Columbia’s CPA (and that of most other Canadian jurisdictions) includes no corresponding requirement, but its Supreme Court held in Bahraini v Cineplex Inc., 2025 BCSC 1384 that, absent "extraordinary" cases, defendants' pre-certification applications should be heard first if the plaintiff has not yet filed its certification application. In such circumstances, the court need not evaluate the usual sequencing factors because there is nothing to sequence. Bahraini provides support for defendants seeking to advance pre-certification applications when the plaintiff has not delivered a certification record.

British Columbia Court of Appeal Reiterates that Admissibility Standards Are Not Relaxed at Certification

Courts have repeatedly held that the rules of evidence are not relaxed at certification. In Syngenta AG v. Van Wijngaarden, 2025 BCCA 334, the British Columbia Court of Appeal held that thousands of pages of public documents appended to an affidavit from one of the plaintiff's lawyers who had no personal knowledge of the documents' truth or authenticity, and in many cases did not personally retrieve the documents, were inadmissible hearsay. Syngenta reinforces the courts' important gatekeeper role and provides a helpful summary of the rules applicable to the admission of hearsay and opinion evidence at certification.

No Second Kick at the Can: Ontario Court of Appeal Confirms that Plaintiffs Cannot Amend Instead of Appeal a Finding Where There is no Viable Cause of Action

In David v. Loblaw Companies Limited, 2025 ONCA 830, the Ontario Court of Appeal confirmed that the certification judge's finding that a claim discloses no cause of action gives rise to res judicata. In David, the plaintiff’s motion for certification against one defendant, Maple Leaf Foods Inc., had been dismissed for failing to plead a viable cause of action. The representative plaintiff sought to amend the pleading. The Court of Appeal held that the initial dismissal of certification against Maple Leaf was a final order, and the plaintiff’s only recourse was to appeal. David reinforces that procedural tools available under class proceedings legislation cannot override defendants' substantive rights, including the right to rely on the doctrine of res judicata.

Ontario Court of Appeal Finds No Basis for "Conditional" Certification Order

Sometimes courts conclude that plaintiffs have satisfied some of the certification criteria but not others. In Knisley v. Canada (Attorney General), 2025 ONCA 185, the Ontario Court of Appeal confirmed that courts cannot certify a class action conditional upon the plaintiff's future satisfaction of one or more certification criteria. The Court of Appeal held that nothing in the CPA contemplates conditional certification, and that all certification criteria must be considered contextually. Knisley reinforces that a plaintiff's proposed class action cannot be certified unless and until all of the certification criteria are satisfied.

Ontario Court Provides Guidance on Management of Overlapping Multijurisdictional Claims

Absent a centralized system, Canadian courts and parties continue to grapple with the challenges of overlapping multi-jurisdictional class proceedings. In Strathdee v. Johnson & Johnson Inc., 2026 ONSC 1186, the Ontario court acknowledged that "it is preferable that courts attempt to reduce overlapping claims" but, on the unique facts of the case, ultimately certified an Ontario action and refused to stay it despite overlapping certified actions in British Columbia (which was active), Quebec (which was dormant) and an uncertified action in Alberta. The court found that the Ontario action had a broader class and legal scope than the British Columbia action, and therefore was not an abuse of process and was the preferable procedure for litigating the Ontario class's claims.

If you have further questions about this update or class action litigation more generally, please contact the authors or a member of the Class Action Litigation group.