guarantee of that. As indicated by Sharpe J. in Bywater v. Toronto
Transit Commission,  O.J. No. 4913, 83 O. T.C. 1 (Gen. Div.),
para. 14, “Without a certification order from this court no public
statement by the defendant, and no admission in its defence to
the nominal plaintiff, binds the defendant in respect of the members of the proposed class.” In any case, that does not undermine
the fact that the requirements of s. 5(1) of the CPA have been met
here. The same commonality that makes this an appropriate test
case in the defendants’ mind makes it an appropriate class action:
Heyde v. Theberge Developments Ltd.,  O.J. No. 1341, 2017
ONSC 1574 (S.C.J.), para. 88.
 Counsel for the defendants also suggests that it would be
preferable for this matter to be brought before the Office of the
Superintendent of Financial Institutions Canada, the federal regulator of pension plans, for determination. There is, however, no
evidentiary basis to support the contention that a regulatory proceeding would be a preferable procedure. In any case, the Supreme
Court of Canada has indicated that if “the defendant relies on
a specific non-litigation alternative, he or she has an evidentiary
burden to raise it”: AIC Limited v. Fischer,  3 S.C.R. 949,
 S.C.J. No. 69, para. 49. In the absence of any evidence to the
length of time, difficulty or ease of enforcement, procedures that
need to be completed, etc. with respect to the proposed regulatory
proceeding, I cannot accept a contention that the federal regulator
represents a procedure that is preferable to a class action.
 In the context of this case, where the merits will be determined in a summary judgment motion argued at the same time as
certification, there is little to be accomplished in choosing an alternative procedure. The goals of judicial economy and access to
justice will be forwarded here in the most efficient way possible.
Neither a one-off test case nor a regulatory proceeding will
accomplish those goals in as effective a manner.
 Finally, the requirements of s. 5(1)(e) of the CPA are readily
satisfied here. The plaintiff is a pensioner himself, is fully engaged
in the litigation and able to instruct counsel, has no conflict of
interest with other class members or with the class as a whole,
and has a workable litigation plan.
 The requirements of s. 5(1) of the CPA are satisfied here.
There is no reason not to certify this action as a class proceeding.
III. Summary Judgment
 The summary judgment portion of this proceeding is the
more contentious part. Each side is of the view that the case is
entirely and unambiguously in their favour, and that there is no
issue in need of a trial. Since the action will be simultaneously