Administrative - Competing Court-Tribunal Jurisdiction (Weber). Brewers Retail Inc. v. Campbell
In Brewers Retail Inc. v. Campbell (Ont CA, 2023) the Court of Appeal considered an appeal from a motion judge's unusual 'reverse' class action certification, where the private parties together sought to use the class action distribution procedures to implement a negotiated pension indexing scheme.
In these quotes the court considers the appellant's [the Financial Services Regulatory Authority (FSRA)] arguments that the Financial Services Tribunal (“FST”) had exclusive jurisdiction over the matter, and that thus the class action was inappropriate:
 In 2019, the Financial Services Regulatory Authority of Ontario (“FSRA”) replaced FSCO. Initially, FSRA affirmed FSCO’s support for the settlement agreement but, later, it resiled.. Fareau v. Bell Canada
 When the parties began the class proceeding, the Chief Executive Officer of the FSRA (the “CEO”) sought to have the proceeding stayed, claiming that the Financial Services Tribunal (“FST”) had exclusive jurisdiction over the matter. The motion judge rejected that claim. By orders dated February 10, 2022, the court dismissed the stay motion and ordered certification (the “Orders”).
 FSRA appeals against the Orders. It contends that the PBA establishes a comprehensive framework for the regulation of pension plans and that the issues raised in the dispute are within the exclusive jurisdiction of the FST. FSRA maintains that, if left uncorrected, the Orders will undermine the carefully calibrated legislative and regulatory scheme which governs the regulation of pension plans and employers will be able to commence collateral court proceedings instead of engaging with the regulator in accordance with the statutory review process.
 On November 24, 2020, FSRA issued a NOID advising that it was refusing to register Plan Amendment No. 9, the 2013 amendment, and another amendment that Brewers had proposed in 2015.
 In December 2020, Brewers requested a hearing by the FST so it could challenge the NOID. The Committee was added as a party to the FST proceeding. Brewers also advised FSRA that it intended to proceed with the class proceeding settlement approval process.
 The motion judge stated that the court had jurisdiction over the Application as a matter of its inherent jurisdiction unless it was “clearly and unequivocally” deprived of that jurisdiction. He found that FSRA had not identified any provision in the PBA or other statute which excluded the court’s authority to adjudicate pension disputes or to engage in statutory and contractual interpretation with respect to those disputes. He pointed to “ample precedent” for the court engaging in such pension decisions, including one case where the court determined it had jurisdiction to decide pension-related disputes in the face of direct opposition by the pension regulator: Anova Inc. Employee Retirement Pension Plan (Administrator of) v. Manufacturers Life Insurance Co. (1994), 1994 CanLII 7519 (ON SC), 121 D.L.R. (4th) 162 (Ont. Gen. Div.).
ISSUES 1 and 2: The FST does not have exclusive jurisdiction over the Application
 FSRA’s central contention on this appeal is that the FST has exclusive jurisdiction over the subject matter of the Application and the court must defer to it. As both Issues 1 and 2 rest on that contention, I deal with them together. I make the following three points by way of introduction.
 First, the parties are agreed that the question of jurisdiction is a question of law and subject to review on a standard of correctness.
 Second, s. 8 of the Financial Services Tribunal Act, 2017, S.O. 2017, c. 34, Sched.17 (the “FSTA”) plays a major role in deciding these issues. It reads as follows:
The Tribunal has exclusive jurisdiction to, Third, given the sheer number of arguments the parties raise on Issues 1 and 2, in setting out their positions, I summarize only their main arguments.
(a) exercise the powers conferred on it under this Act and every other Act that confers powers or assigns duties to it; and
(b) determine all questions of fact or law that arise in any proceeding before it under any Act mentioned in clause (a). [Emphasis added.]
 There is no dispute that the court has jurisdiction to hear applications under the CPA. Nor is there any dispute that the court has inherent equitable jurisdiction to vary or amend trusts in certain circumstances: see Re Dickson et al. and Richardson (1981), 1981 CanLII 1842 (ON CA), 32 O.R. (2d) 158 (C.A.), at pp. 168-69. With the Supreme Court’s adoption of the exclusive jurisdiction model in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC),  2 S.C.R. 929, at paras. 50-58, the court’s jurisdiction in civil proceedings is ousted only when the subject matter of the dispute falls within the exclusive jurisdiction of a statutory decision-maker.
 In my view, neither s. 8 of the FSTA nor the general statutory scheme in the PBA contains clear and unequivocal wording that ousts the court’s jurisdiction. While the motion judge did not expressly advert to s. 8 of the FSTA or the general PBA statutory scheme, he considered and addressed FSRA’s argument that the FST has exclusive jurisdiction over the dispute. At paras. 38-39 of his reasons, the motion judge said that FSRA had not identified any provision in the PBA or other statute which excludes the court’s jurisdiction. I agree. Consequently, I see no error in the motion judge dismissing the motion.
 Section 8 of the FSTA gives the FST exclusive jurisdiction over “all questions of fact or law that arise in any proceeding before it”. On a plain reading of s. 8, it does not explicitly oust the court’s jurisdiction to decide all pension disputes or to approve settlements that may involve interpretations of the PBA and result in amendments to a pension trust: its exclusive jurisdiction is limited to questions of fact or law arising from “any proceeding before it”.
 In this regard, the wording of s. 8 can usefully be contrasted with the statutory language in s. 45 of the Labour Relations Act, R.S.O. 1990, c. L.2, the statutory provision at issue in Weber. Section 45 provided for “binding settlement by arbitration” of “all differences between the parties arising from the interpretation, application, administration or alleged violation of the [collective] agreement”. The Supreme Court confirmed that s. 45 established a model of “exclusive jurisdiction” for labour arbitration, ousting the court’s ability to adjudicate civil actions based solely on collective agreements. Justice McLachlin (as she then was) found the words, “all differences between the parties” ousted the court’s jurisdiction in “all proceedings arising from the differences between the parties, however those proceedings may be framed”: at para. 50. The courts did not have concurrent jurisdiction because s. 45 established a model of “exclusive jurisdiction” for labour arbitration.
 That is not this case here. Section 8 of the FSTA does not give the FST the authority to decide “all differences between the parties arising from the interpretation, application, administration or alleged violation” of the PBA, the language found in Weber to oust the court’s jurisdiction. Section 8 gives the FST exclusive jurisdiction over only all questions of law or fact that “arise in any proceeding before it”. The questions before the FST in this case are those framed by the NOID, which focusses on whether certain Plan amendments comply with ss. 14 and 14.1 of the PBA. Those questions are not co-extensive with the questions of fact and law that arise in this class proceeding. Of necessity, both the factual and legal matters in this proceeding are broader because they are designed to address all the Indexing Issues, not only those identified in the NOID.
 Furthermore, while s. 8 may give the FST concurrent or overlapping jurisdiction over the common issues in the Application, the FST does not have the power to approve the Settlement Agreement or vary the pension trust. The Application calls on the court to consider those remedies and the questions of fact or law that necessarily underpin them. Thus, assuming that the common issues in the Application are ones the FST hearing would decide, at most there is concurrent or overlapping jurisdiction over the limited matters that arise in the FST proceeding.
 The scheme of the PBA also does not oust the court’s jurisdiction. The PBA is not comprehensive legislation; it provides minimum standards that pension plans must meet for registration in Ontario: see e.g., Buschau v. Rogers Communications Inc., 2006 SCC 28,  1 S.C.R. 973, at para. 35; Lomas, at para. 45. The courts have repeatedly exercised jurisdiction over a variety of pension disputes, including approving settlements that require the amendment of a pension plan’s text: see e.g., Montreal Trust Company of Canada v. Ontario (Superintendent of Financial Services), 2009 ONFST 1.
 In Montreal Trust, the company and pension plan members settled a dispute over surplus distribution. They took their agreement to the Superior Court by way of a class proceeding. The court approved the terms of the settlement and ordered that the pension plan and trust instrument be amended to give effect to the surplus distribution, while stipulating that its order was subject to all necessary regulatory approvals. When the Ontario regulator refused to consent to the distribution of surplus under the court order, alleging non-compliance with the PBA, the company took the matter to the FST. The FST acknowledged the court’s inherent jurisdiction to remodel the terms of the pension trust to effect a settlement of a dispute over pension plan terms, and affirmed the validity of the court’s order. The Superior Court has certified class actions for settlement purposes involving pension disputes on multiple other occasions: see e.g., Kidd v. Canada Life, 2011 ONSC 6324, 22 C.P.C. (7th) 156; Toronto District School Board v. Field, 2010 ONSC 3865; 98 C.P.C. (6th) 36.
 Moreover, I do not accept FSRA’s submission based on Lomas. In Lomas, a former employee of the respondent company and a contributing member of the respondent’s pension plan brought an application for an order winding up the pension plan or directing the respondent to make a wind up application under s. 68 of the PBA. This court dismissed the application. However, it did not find, as FSRA contends, that the PBA is a comprehensive statutory regime which deprives the court of jurisdiction over pension disputes. Rather, this court decided a much narrower point, namely, that the court does not have jurisdiction to make an order compelling an employer to commence wind up proceedings under the PBA.
 As this court explained at paras. 71-84 of Lomas, the statutory scheme governing the Superintendent’s powers in relation to the wind up of pension plans was one basis for its conclusion that the court lacked jurisdiction. The power to initiate an involuntary wind up was explicitly given to the Superintendent under the PBA and required the Superintendent to follow a detailed process. Together, the PBA and the Financial Services Commission of Ontario Act, 1997, S.O. 1999, c. 28, created “a carefully calibrated, multi-layered process for deciding whether a wind up will be ordered when the wind up has not been initiated by the employer”: at para. 72.
 This case is very unlike Lomas. The most obvious distinction is that this case does not involve the court’s jurisdiction to order the wind up of a pension plan, and it is that matter which Lomas decided. As well, unlike in Lomas, there is no comprehensive scheme governing the very matters in issue. Further, the remedies sought by the parties in this proceeding are available only through the courts, whereas in Lomas, the power to grant the remedy sought was expressly given to the regulator in the legislation. Neither FSRA nor the FST can approve the Settlement Agreement or sanction amendments to the Plan and pension trust in accordance with it.
 I hasten to add that I do not intend my analysis to suggest that the FST will never have exclusive jurisdiction in any pension dispute. One example will demonstrate this. For the purpose of this example, assume that Brewers was concerned about its interpretation and administration of the Plan based on the Indexing provisions and the sole step it took to address those concerns was to file Plan Amendment No. 9. Just to be clear, in this example remove the true history to this proceeding and leave the sole background to be as described in the prior sentence. Imagine that the CEO responded by issuing a NOID advising Brewers that it was refusing to register Plan Amendment No. 9. If, instead of seeking a hearing before the FST, Brewers attempted to have the validity of Plan Amendment No. 9 decided by the court, on reasoning similar to that in Lomas, arguably the court could be found to be without jurisdiction because of the statutory scheme governing the CEO’s powers together with those given to the FST under s. 8 of FSRA.
In Fareau v. Bell Canada (Ont CA, 2023) the Court of Appeal considered a 'Weber' administrative-court jurisdiction dispute between the court and the CRTC, here respecting a court challenge to a monopolistic and exploitive telephone contract for provincial prisoners.
The proceeding before the court was that:
 The appellants brought a certification motion, and Bell and Ontario brought cross-motions seeking a stay or dismissal of the action on the basis that the claims were within the jurisdiction of the Canadian Radio-television and Telecommunications Commission (“CRTC”).Then, the Court of Appeal sets out the lower court's analysis:
 In arguing the issue of jurisdiction, all parties referred to the test from Weber v. Ontario Hydro, 1995 CanLII 108 (SCC),  2 S.C.R. 929. The first step of the Weber analysis requires the court to consider the scope of the tribunal’s jurisdiction. The second step is to examine the essential character of the dispute. The third step is to ask whether the matter falls within the tribunal’s exclusive jurisdiction, or if not, whether the tribunal is the preferable forum for its resolution: Penney, at para. 149.Then the Court of Appeal engages in it's appellate analysis, centering on whether a permanent as opposed to a temporary stay was required pending the (administrative) CRTC's dealing with the issue:
 Consistent with the test, the motion judge first discussed the jurisdiction of the CRTC. He noted the CRTC’s “expansive jurisdiction to regulate the telecommunications industry”, including setting rates for collect calls. He also recognized that pursuant to s. 34 of the Act, the CRTC may forbear from setting rates, noting that “[t]he CRTC … may exercise a discretion to forego setting the rates when it is satisfied that there is a competitive marketplace adequate for the task”: at para. 95; see also para. 26.
 Second, he considered the essential character of the dispute. He found that the “pith and substance” of all the appellants’ causes of action (other than those that disclosed no cause of action) was rates, which was within the “wheelhouse of the CRTC’s broad jurisdiction to resolve disputes and its broad remedial authority”: at para. 96. Determining the reasonableness of rates was a central responsibility of the CRTC.
 Third, he found that the CRTC was the preferable forum for resolution. He explained why at para. 99:
Once again, a conclusion is painfully obvious. The pith and substance of the Plaintiffs’ remaining causes of action are: (a) within the jurisdiction of the CRTC to resolve; (b) meaningful remedies are available from the CRTC; (c) the subject matter of the dispute is at the heart of the telecommunications scheme administered by the CRTC; (d) the CRTC has the subject matter expertise to decide the dispute and the Superior Court of Justice does not; and (e) a ruling by the Superior Court runs the risk of discombobulating the national policies and administration of telecommunications service providers. In these circumstances, a superior court ought to stay its jurisdiction and defer to the jurisdiction and expertise of the CRTC. He therefore concluded that it would not be an appropriate exercise of the Superior Court’s jurisdiction to proceed with those causes of action that had not been struck and ordered that they be permanently stayed.
 I now turn to the motion judge’s adjudication of the claim of unjust enrichment as against Bell and Ontario, and the claims of unconscionable contract and breach of provincial consumer protection legislation as against Bell only.
 The central issue is whether the CRTC assumed jurisdiction over the setting of these rates.
The Parties’ Submissions
 The parties agree that the motion judge was required to apply the analysis set out in Weber to determine the issue of jurisdiction, that is: to consider the scope of the tribunal’s jurisdiction, the essential character of the dispute, and whether the matter falls within the tribunal’s exclusive jurisdiction, or if not, whether the tribunal is a preferable forum for its resolution: Penney, at para. 149. They disagree however, as to whether the CRTC assumed or forbore from assuming jurisdiction of the rates and if so, how that plays into the Weber analysis.
 The appellants claim the motion judge failed to consider the fact that the CRTC forbore from exercising its jurisdiction to determine these rates and that, as such, they have recourse to the court to assert a private law cause of action: citing Bell Canada c. Aka-Trudel, 2018 QCCA 829, leave to appeal dismissed, 2019 CanLII 11818 (SCC);Morin c. Bell Canada, 2012 QCCS 4191.
 They note that in Telecom Decision CRTC 1997-19, the CRTC generally forbore from regulating long-distance rates though it reserved the right to ensure that long-distance rates were just and reasonable in “non-equal access areas”. The appellants submit that this is not a case that falls within the “non-equal access area” exception to forbearance as that exception refers to a geographic area that is not serviced by equal access switches.
 The appellants further claim that since the CRTC forbore from deciding these rates, the “CRTC allowed the market to set those rates”. They note that Bell’s own witness, Pierre-Luc Hébert, swore that “following TD CRTC 1997-19, Bell no longer required CRTC approval of its rates for long-distance calls.” Instead, “rates were left to the market to determine. This included rates for long distances calls made on payphones.”
 The respondents claim the CRTC did not forbear from deciding these rates. They submit that “the CRTC expressly reserved for itself the powers under s. 27(1) of the Telecommunications Act to assess whether rates are just and reasonable in ‘non-equal access areas’” and that “non-equal access areas” refers to areas where callers do not have access to a competing long-distance network of their choice.
 These Class members do not have access to a competing long-distance network of their choice and as such, setting these rates fits within the exception to forbear.
 Furthermore, the respondents submit that, to the extent that there is a dispute about what is meant by a “non-equal access area”, that is an issue that should be left to the CRTC to determine.
 The appellants claim that, in any event, the motion judge erred in not conducting a “preferability analysis” (which is required under s. 5(1)(d) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”) when determining whether a class proceeding should be certified). They claim that had the motion judge done such an analysis, he would have had to address the fact that the CRTC generally does not hear disputes about long-distance calls. Rather, they are referred to the Commission for Complaints for Telecom-television Services Inc. (“CCTS”). In response, the respondents submit that no such assessment is necessary in applying the Weber analysis.
Analysis of the Motion Judge’s Reasons
 The decision to stay a proceeding is a discretionary decision that is normally entitled to deference. A discretionary decision may however be interfered with if it was “based on a wrong principle, a failure to consider a relevant principle or a misapprehension of the evidence”: Brown v. Hanley, 2019 ONCA 395, at para. 24.
 In addressing the issue of jurisdiction, the motion judge began by correctly noting that the CRTC has a legislative mandate to determine calling rates, to decide whether they are “just and reasonable”, and to award damages where they are not: see ss. 25, 27 and 32 of the Act.
 Although setting rates such as these is within the jurisdiction of the CRTC, the motion judge also noted that, under s. 34 of the Act, the CRTC “may exercise a discretion to forego setting the rates when it is satisfied that there is a competitive marketplace adequate for the task.”
 Second, he characterized the pith and substance of the proposed class action as whether the rates charged to Class members were unreasonable and/or unconscionable and held that these “causes of action are in the wheelhouse of the CRTC’s broad jurisdiction to resolve disputes and its broad remedial authority.”
 Third, he held that there was good reason and it was therefore appropriate for the Superior Court to defer jurisdiction to the CRTC as,
The pith and substance of the Plaintiffs’ remaining causes of action are: (a) within the jurisdiction of the CRTC to resolve; (b) meaningful remedies are available from the CRTC; (c) the subject matter of the dispute is at the heart of the telecommunications scheme administered by the CRTC; (d) the CRTC has the subject matter expertise to decide the dispute and the Superior Court of Justice does not; and (e) a ruling by the Superior Court runs the risk of discombobulating the national policies and administration of telecommunications service providers. In these circumstances, a superior court ought to stay its jurisdiction and defer to the jurisdiction and expertise of the CRTC. In addressing the issue of forbearance, the motion judge did not determine whether in this case, the CRTC forbore its power to regulate long-distance rates on collect calls made from correctional institutions by invoking Telecom Decision CRTC 1997-19, or whether GT 292’s statement limiting the rates for inmate calls to those originating from other public telephones constitutes a willingness to regulate just and reasonable rates. Nor did he consider whether, if the CRTC forbore, it has the power to reconsider that decision.
 However, it appears from his statement that “meaningful remedies are available from the CRTC”, that he believed that either the CRTC did not forbear or that even if it had, the CRTC could reconsider its decision to forbear.
 Given that a central issue in this case is whether the CRTC forbore from exercising its jurisdiction, the Quebec cases of Aka-Trudel and Morin, cited by the appellants are distinguishable, because those cases were based on Quebec private law causes of action between a consumer and a licensee under the Act relating to late payment fees (Aka-Trudel), and termination fees and service cancellation fees (Morin). In both cases, the CRTC had forborne from regulating these fees as it pertained to that service provider in Quebec. As such, the only issue in those cases was what forbearance meant in terms of the Superior Court’s jurisdiction: see Aka-Trudel, at paras. 23-26; Morin, at paras. 41-61.
 While I agree with the motion judge’s analysis of the CRTC’s jurisdiction and the pith and substance of these claims, I find that he erred in not taking into account the possibility that the CRTC may be precluded from or may elect not to adjudicate whether long-distance rates charged to class members are just and reasonable.
 For the reasons set out below, I find that, while some strong arguments were raised in support of the CRTC assuming jurisdiction, forbearance is in question and one that is most appropriately decided by the CRTC since it requires consideration of the CRTC’s regulatory scheme and their prior regulatory decisions.
 First, the appellants submit that the words “non-equal access areas” in Telecom Decision 2018-84 refer to unequal access to switches in a specific geographic area and not unequal access to other long-distance providers, though the words are not clearly defined in CRTC 2018-84. The decision provides that,
While there are other types of long distance services available in the wireline long distance market, such as long distance plans, and other options available online and through wireless services, the record of this proceeding does not permit the Commission to adequately assess the impact of BCS on the downstream retail wireline long distance market. However, the record of this proceeding suggests that a significant portion of casual long distance end-users are customers who make small volumes of long distance calls and customers that may be unable to afford or access other communications technologies (e.g. online and wireless services). These customers would likely be more impacted if BCS were no longer mandated. Casual long distance calling offered through BCS may, in many cases, be a very effective and affordable way for certain vulnerable customer segments to fulfill their telecommunications needs, and continuing to mandate BCS would contribute to the welfare of these customers. In light of the above, the Commission finds that the policy considerations considered above support the continued mandating of BCS. Second, there is the significance of GT 292, at paragraph (c). That paragraph provides that “[i]nmate service calls are rated in the same manner as calls originating from other public telephones” which are set by the market. The appellants claim this constitutes forbearance of the CRTC setting the rates in favour of the market setting rates.
 The respondents disagree. They claim the CRTC has maintained jurisdiction as the rates charged for inmate service calls must be matched to the rate charged for other public telephones. They claim that even if those rates are set by the market, this does not necessarily mean that the CRTC forbore, as s. 34(1) of the Act simply provides that the CRTC “may [not must] make a determination to refrain, in whole or in part and conditionally or unconditionally”.
 Third, even if the CRTC did forbear from regulating these calls, the respondents have pointed to one instance where the CRTC reconsidered its forbearance decision: see Telecom Decision CRTC 2002-37.
 Unless the CRTC is held to have forborne from regulating these rates, it has the jurisdiction and the mandate to determine just and reasonable rates and has broad authority to order damages payable for the failure to do so. Moreover, the CRTC may order remedies on a class-side basis, including retroactive relief: Penney, at para. 139, citing Telecom Decision CRTC 2004-8.
 However, if the CRTC declines to assume jurisdiction to determine whether the rates were just and reasonable either because it cannot or chooses not to do so, a permanent stay would leave the appellants without adjudication of the issue of the reasonableness of the rates charged either by the CRTC or the Superior Court.
 Thus, while I agree with most of the motion judge’s analysis, I find that he erred in not considering the possibility that the CRTC may not adjudicate whether long-distance rates were just and reasonable. As such, I would substitute a temporary stay for the permanent stay ordered by the motion judge.
 A stay is consistent with the case law affirming that courts ought not to exercise jurisdiction where adjudication requires consideration of a regulatory scheme administered by a specialized tribunal that deals with national policies and the administration of telecommunication services across the country: see, e.g., Mahar v. Rogers Cablesystems Ltd. (1995), 1995 CanLII 7129 (ON SC), 25 O.R. (3d) 690 (Ont. Gen. Div.); Sprint Canada Inc. v. Bell Canada (1999), 1999 CanLII 3296 (ON CA), 86 C.P.R. (3d) 285 (Ont. C.A.), aff’g (1997) 1997 CanLII 12379 (ON SC), 79 C.P.R. (3d) 31 (Ont. Gen. Div.); Penney; Bazos v. Bell Media Inc., 2018 ONSC 6146, 143 O.R. (3d) 417. There is also a concern about having provincial courts resolving telecommunication issues with national implications. As Sharpe J. (as he then was) stressed in Mahar, at para. 35:
The principle established by the case law, in particular [British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., 1995 CanLII 101 (SCC),  2 S.C.R. 739], of the deference due to the decisions of the CRTC on legal matters within its jurisdiction seems to me significant. … In some ways, however, the case at bar presents a more serious challenge to the integrity of the regime established by Parliament. If the applicant's submissions were accepted and this court were to decide the case, there would, in effect, be an alternate forum for the determination of an important aspect of the relationship between suppliers of cable services and subscribers. A superior court would be deciding that issue without the benefit of the opinion of the CRTC. Because this is but one of ten provincial superior courts the spectre of various approaches from various provincial courts is raised. Assumption of jurisdiction by this court would not only evade the CRTC, it would also remove the case from the authority of the Federal Court of Appeal which is mandated to review the CRTC. The net result would be to disrupt the scheme envisaged by Parliament for the interpretation of the Regulations…[Emphasis added.] At the same time, a temporary stay, unlike a permanent stay, ensures that the appellants and the Class will not be left without a forum for the adjudication of their claims, which is consistent with the principle of access to justice. Ordering a temporary stay will provide the CRTC with the opportunity to address the forbearance issue and then possibly, decide whether the rates were just and reasonable.
 I note that while Bell argued in favour of maintaining the permanent stay, counsel for Bell fairly conceded in oral argument that a temporary stay was a “door that was open” if the court found that there was a reason to interfere with the motion judge’s discretionary decision.
 Finally, as for the appellants’ preferability argument, I disagree that the motion judge erred in not conducting a preferability analysis under s. 5 of the CPA in disposing of the jurisdiction motions. Under s. 5(1)(d), a court shall consider if “a class proceeding would be the preferable procedure for the resolution of the common issues.” If the appellants end up returning to the Superior Court upon the lifting of the temporary stay, they may renew their request for certification and at that point it will be up to the certification judge to apply the s. 5 certification test.
 I would therefore substitute the motion judge’s permanent stay with a temporary stay to be lifted, should the parties so choose, on the terms set out at paragraph 14 above.