By: Bianca Demian
The Ontario Class Proceedings Act (“CPA”) was amended on October 1, 2020 to address issues related to procedural delay in an effort to advance stagnant claims. As described in a previous blog, the Law Commission of Ontario had recommended additional rules to mitigate the harm of delay on class members who may be negatively impacted by dormant cases, including the potential of lost evidence, as well as to avoid financial or reputational harm that may be experienced by the defendants. The Ontario government later passed section 29.1, mandatory dismissal for delay, to provide that an action will be dismissed for delay unless the plaintiff has not filed a complete motion record within one year of the commencement of the action, the court has established a timetable for the steps in the litigation or the parties have agreed to a timetable. On January 14, 2022, Justice Belobaba ruled on the motion to dismiss for delay in Bourque v Insight Productions, following the court’s first hearing of a motion addressing section 29.1. Justice Belobaba’s remarks, addressed below, suggest that new provisions in the CPA will be interpreted according to their plain and literal meaning.
In Bourque, Justice Belobaba granted the motion and dismissed the proposed class action proceeding for delay. The proposed class action was commenced on February 21, 2020 and alleged employee misclassification by the defendant group of television production companies. Pursuant to section 39(2) of the CPA, all class actions commenced before October 1, 2020 are considered to have been commenced on October 1, 2020 for the purposes of the one-year dismissal for delay rule. In other words, the proposed representative plaintiff, Anna Bourque, was required to serve her motion record for certification by October 1, 2021 to comply with section 29.1, or to have secured a timetable for the litigation. In this case, the plaintiff (a) filed her certification motion record on October 6, 2021, five days late; (b) had not filed a timetable for advancing the proceeding agreed to by the parties; and (c) had no court-approved timetable. Class counsel noted that during a case management conference of May 8, 2020, the court agreed with the plaintiff that she could serve the certification record “when she can”. However, Justice Belobaba agreed with the defendant’s statement that no timetable was discussed or established at the case management conference.
Can the Mandatory Dismissal for Delay Provision be Overruled?
Class counsel also argued that the class action should not be dismissed because the CPA “is remedial legislation and should be given ‘a generous, broad, liberal and purposive interpretation’”. Justice Belobaba, while agreeing with class counsel’s comment about the court’s approach to the CPA, took the position that in order to give effect to a statutory provision intended to promote the timely advancement of class action litigation, the liberal and purposive interpretation of section 29.1 is the one that achieves its intended objective.
Counsel representing the class further relied upon section 12 of the CPA which provides that the court may make any order considered “appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination.” The court, however, affirmed that section 12 of the CPA cannot override the mandatory provisions of the CPA, including the dismissal for delay requirements pursuant to section 29.1.
Moreover, the court did not sympathize with the argument that litigation deadlines had been stayed as a result of the pandemic. Specifically, section 29.1 came into force after the temporary suspension of statutory limitation periods had ended on September 14, 2020. To ensure a fair and expeditious process for both parties, Justice Belobaba reminded class counsel that they must interpret and apply the provision as written.
Impacts of the Decision on Access to Justice for Class Members
While the defendants’ section 29.1 CPA motion dismissing the Bourque claim for delay was successful, Justice Belobaba confirmed that an identical action against the defendants can still be filed and class members may still have the opportunity to prosecute their claim. However, the fresh claim must be filed with a different representative plaintiff.
The decision in Bourque raises concerns for class members’ ability to obtain access to justice. The filing of a second, duplicative action creates a financial burden that may ultimately have to be paid by the class. Additionally, further delays may occur as class counsel attempts to identify another representative plaintiff who meets the requirements pursuant to section 5(1)(e) of the CPA. On the other hand, putting class counsel on notice that the one-year deadline for filing a timetable or certification motion record is a strict rule may result in fewer delays overall. Whether the court’s interpretation of the dismissal for delay provision achieves the LCO’s and the Legislature’s objectives of promoting efficiency and advancing access to justice requires careful consideration.
The Clinic is available to assist class members in understanding their rights and how current legislation may impact their class action.