In its recent decision in Meeking v Cash Store Inc. et al., 2014 MBCA 69, the Manitoba Court of Appeal reiterated the appropriate test which must be satisfied in order for leave to be granted to appeal the certification of a class action.

The appropriate test, which was set out in Pelchat v Manitoba Public Insurance Corp., 2009 MBCA 90, limits leave to only those cases which warrant the attention of the court. As noted by Justice Steel in Meeking:

[14] Cases that warrant the attention of the court will generally be those which are significant, not just for the immediate case or to the individual litigants, but in determining similar disputes which are likely to arise in the future and are important to the public at large.

Moreover, though not a decision made in the context of a class action proceeding, the test from Pelchat has been upheld as not substantially altering the test for obtaining leave in class proceedings.

It was argued before the Manitoba Court of Appeal that the citation with approval of the Newfoundland Court of Appeal decision in Pardy et al. v Bayer Inc., 2005 NLCA 20, was informative with regard to the approach for granting leave to appeal a certification decision; since a certification decision is an interlocutory procedural order, leave from such orders are only granted sparingly.

The Manitoba Court of Appeal disagreed with this approach, however, finding that the Newfoundland jurisprudence was of no assistance. Indeed, unlike Newfoundland, which has a statutory provision for the applicable test for leave to appeal interlocutory decisions, Manitoba does not. And while the Manitoba approach is generally to quash appeals of interlocutory orders when they are heard, the Pelchat test governs all motions for leave to appeal.

Regarding certification decisions specifically, the Manitoba Court of Appeal noted that the Pelchat test stills governs leave to appeal and that

[21] …the nature of the order will certainly colour the decision. For example, a certification order requires the motion judge to exercise substantial discretion in making a determination. Such discretion generally engages a level of deference from this court.

Applying the Pelchat test to the facts at hand, the Manitoba Court of Appeal found that the case did not raise issues of sufficient importance to warrant a hearing from the Court of Appeal, and therefore dismissed the appeal with costs.