What is the test for striking out pleadings in a class action?

Difficult questions of law sometimes arise on the pleadings, including complex questions of statutory interpretation. If reasonably possible, the judge should address such questions directly at the certification stage and thus ensure that judicial and other resources are not squandered. However, this does not necessarily mean that the certification judge should purport to resolve all such questions at an early stage of a class proceeding. The only issue for resolution at the certification stage is whether the test for striking-out pleadings articulated in Hunt v. Carey has been satisfied. However novel or weak a claim may seem, if it is arguable the certification judge should not engage in a merits-based analysis of the claim. [Citations omitted; emphasis added.]

This Court has been clear that the ultimate question when assessing whether there is a cause of action is the Hunt v. Carey test: “assuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff's statement of claim discloses no reasonable cause of action?” While the burden is on the plaintiff, the bar is not high. Where the question turns on statutory interpretation, “if it is arguable,” the certification judge should not engage in a merits-based analysis. The gate-keeping role of the certification judge at this stage is to avoid squandering judicial resources when it is clear that the correct statutory interpretation would leave the pleadings bound to fail. This could be the case where there is previous binding case law squarely on point or where the interpretive exercise is so straightforward the answer is plain and obvious even without previous case authority.