In Sellars v. Canada (Attorney General), 2025 FC 1477, released on September 8, 2025, Associate Judge Ring granted a motion to defer the delivery of Canada’s defence until after the disposition of the plaintiff’s certification motion. In doing so, Justice Ring provided guidance on why the deferral of a defence may be appropriate when a defendant is faced with a complex claim.
In Sellars, the proposed representative plaintiff, Mr. Sellars, is a currently incarcerated member of the Xat’sull First Nations. Mr. Sellar’s proposed class action, brought on behalf of all First Nations, Inuit, and Métis persons in Canada who were incarcerated in federal institutions from 1985 until now, seeks to litigate a section 15 Charter claim alleging systemic program underfunding and negligent operations. Canada moved for an extension of time to file its defence until after the final disposition of the certification motion.
Associate Judge Ring found that the “default” position under the Federal Courts Rules, SOR/98-106, is that a statement of defence must be filed prior to certification and that an extension “is not automatic or to be granted as a matter of course”, but that judicial discretion may permit the deferral of a defence. As Associate Judge Ring stated, the court’s exercise of discretion in this context seeks to balance “efficiency and fairness”, and can include consideration of the factors enumerated in Poundmaker Cree Nation v. Canada, 2017 FC 447:
- whether the statement of defence would serve “any useful purpose” for the certification motion;
- whether deferring a defence will advance the “most just, efficient and least costly” resolution of the litigation;
- the nature of the proceedings and asserted rights, as potentially relevant contextual factors; the complexity of the matter;
- the amount of time and effort needed to prepare a defence pleading;
- whether any such pleading will need “entire” reformulation after certification; and
- any “obvious” prejudice to the plaintiff.
In response to Canada’s motion, Mr. Sellars urged Associate Judge Ring to adopt the approach of the British Columbia Supreme Court in Shaver v. Mallknckrodt Canada ULC, 2021 BCSC 404, submitting that this decision reflected a “broader trend” across Canada toward the requirement that a defence be filed before the certification motion is heard. In that case, the British Columbia Supreme Court held that the relevant question is whether a defendant has shown a “good reason” to defer its defence, weighed against the benefits of complete materials to inform certification.
In Shaver, the British Columbia Supreme Court found that the Poundmaker factors may assist a court in determining whether there is “good reason” to defer the delivery of a defence to after certification. It also disagreed with the Federal Court’s comment in Poundmaker that, to meet the “useful purpose” factor, a statement of defence must be “essential” to the disposition of the certification issues. For the court in Shaver, this formulation set the bar too high, and there was a presumption of usefulness in this context. It dismissed the defendants’ motion to defer the delivery of their defence pleadings (in that procedural context, “notices of civil claim”) until after the delivery of certification materials.
In Sellars, Associate Judge Ring disagreed with Mr. Sellars that the analysis in Shaver was necessarily of assistance to the Federal Court’s analysis of a defence deferral motion. In her analysis, she primarily focussed on the factors in Poundmaker, but also concluded, in a summary way, that Canada had met the “good reason” test set out in Shaver.
Associate Judge Ring rejected Mr. Sellars’ argument that Canada’s statement of defence would serve a “useful purpose” at certification for the purposes of the first Poundmaker factor. Mr. Sellars submitted that Canada was likely to make certain admissions in its defence, allowing the parties to “focus and narrow” the certification motion. Associate Judge Ring found this argument to be speculative, based on “assumptions and conjecture”. Associate Judge Ring also rejected Mr. Sellars’ argument that a statement of defence would be useful for identifying the facts underlying any of Canada’s positive defences. Here, Associate Judge Ring found that, although a statement of defence may usefully assist in defining the issues in dispute, the absence of a defence did not eliminate the need for Mr. Sellars to “contemplate defence issues” in his certification motion materials.
Ultimately, Associate Judge Ring was persuaded that the factual and legal complexity of Mr. Sellars’ claim weighed strongly in favour of defence deferral. She noted Canada’s uncontested evidence that it would require extensive and time-consuming internal consultations to formulate its positions on Mr. Sellars’ allegations. Associate Judge Ring also accepted Canada’s argument that “drafting a defence and responding to a certification motion differ in their nature and purpose”, as the former is a substantive response, and the latter a procedural one. She also found that any prejudice to Mr. Sellars in the form of potentially wasted efforts was outweighed by the risk of wasted efforts by Canada in responding to Mr. Sellars’ “wide-ranging” claim.
The decision in Sellars exemplifies how, when a prospective representative plaintiff chooses to plead its case broadly, this choice may have procedural consequences for the plaintiff on certification — and that such consequences may fairly account for a prospective class action defendant’s pre-certification interests. It can be contrasted to Shaver, where the court focussed primarily on the relationship between “a full set of pleadings” identifying “the issues on which the parties [were] joined”, on the one hand, and a “properly structure[ed] certification application”, on the other.
According to the Federal Court's docket, Associate Judge Ring's decision is currently being appealed, so those litigating claims before the Federal Court will want to watch whether this result is upheld on appeal.
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