In Bourque v Insight Productions, 2022 ONSC 174, the Ontario Superior Court of Justice (the "Court") dismissed a proposed class proceeding for delay. The decision is noteworthy as it's the first reported decision that considers section 29.1 of the Class Proceedings Act, which requires plaintiffs to either serve or establish a timeline to serve certification motion materials within one year of starting a class action.

Background

Amendments to Class Action Legislation in Ontario

This motion to dismiss for delay arose from the newly-introduced section 29.1 of the Class Action Proceedings Act, 1992 (the "Act") that came into force on October 1, 2020, as amended by the Smarter and Stronger Justice Act, 2020. Section 29.1 of the Act provides that a court shall dismiss for delay a proceeding commenced under the Act if one of the following steps are not taken within one year of the proceeding's commencement date:

  1. The representative plaintiff has filed "a final and completed motion record" for certification;
  2. The parties have agreed in writing to and filed a timetable for the representative plaintiff to serve their motion record for certification or for completing the steps required to advance the proceeding;
  3. The court has established a timetable for the representative plaintiff to serve their motion record for certification or for completing the steps required to advance the proceeding; and
  4. Any other steps or items specified by regulations.

This amendment to the Act was enacted in response to the recommendations made by the Law Commission of Ontario's ("LCO") final report on class actions. In Class Actions: Objectives, Experiences and Reforms, the LCO recommended introducing an "automatic dismissal and costs provision" for cases where plaintiffs fail to file certification materials within one year of starting their class action, as a way to establish "reasonable and firm consequences for parties to advance their actions in a timely manner", including imposing "discipline on counsel".

Pursuant to the transition provisions in the Act, section 29.1 deemed all class actions commenced prior to the amendments coming into force, to have commenced on October 1, 2020.

The Proposed Class Action

The plaintiffs in this case commenced a proposed class action on February 21, 2020. The claim alleged that the defendant violated the Employment Standards Act, 2000 by misclassifying workers as independent contractors, instead of employees.

Given the transition provisions in the Act, the action was deemed to have commenced October 1, 2020, and therefore, October 1, 2021 was the deadline by which the plaintiffs had to deliver certification materials or take one of the aforementioned steps to move their case forward. However, the representative plaintiff only served her certification motion record on October 6, 2021, one day after the defendant brought a motion to dismiss for delay and six days after the statutory deadline.

In response, the plaintiffs argued, inter alia, that:

  1. a timetable was established by the court informally during a telephone case conference by allowing the plaintiff to serve her certification record "when she can"; and
  2. as remedial legislation, section 29.1 should be given a broad and liberal interpretation, and accordingly, some latitude should be afforded to the plaintiff in not dismissing her action for delay.

The Court's Decision 

Justice Belobaba granted the defendant's motion to dismiss for delay under section 29.1 of the Act, and dismissed the proposed class proceeding in its current form. However, he noted that the plaintiffs' class counsel may re-file an identical action against the defendant with a different proposed representative plaintiff.

Justice Belobaba began his analysis by noting the mandatory dismissal date of October 1, 2021, and by highlighting that section 29.1 employs clear, yet imperative, statutory language: a court "shall" dismiss for delay if none of the requirements outlined in section 29.1 are met by the mandatory dismissal date.

Justice Belobaba then addressed the arguments raised by the plaintiffs:

  • No timetable was established by the court – Justice Belobaba held that to allow a plaintiff to file materials "when [they] can" does not satisfy either the statutory definition of "timetable" or the common language definition, both of which require setting a schedule for specific steps towards completing a larger goal (e., advancing the proceeding). In fact, he noted that allowing a plaintiff to file motion materials at their convenience would be antithetical to the definition of a "timetable" and would contradict the statutory objective underlying section 29.1 of the Act.
  • Statutory interpretation did not assist the plaintiff – While Justice Belobaba agreed that the Act should be given a "generous, broad, liberal and purposive interpretation" as a remedial legislation, he found that a plain language interpretation is in fact a "liberal and purposive" approach as it best advances the purpose and objective of section 29.1. In short, as section 29.1 seeks to ensure the timely advancement of class action proceedings, a plain language interpretation that facilitates this exact goal amounts to a "large and purposive" interpretation that is required for remedial legislation.

The plaintiffs had also advanced the argument that the Court should factor in the suspension of the limitation periods from the COVID-19 pandemic when applying section 29.1. Rejecting this argument, Justice Belobaba held that the pandemic had limited impact on the representative plaintiff's ability to follow section 29.1, as courts were operational from the third week of May 2020 and the limitation period's suspension was lifted prior to the coming into force of section 29.1.

Justice Belobaba declined to use the broad discretion afforded to courts under section 12 of the Act, which empowers courts to make any order regarding the conduct of the proceeding to ensure its fair and expeditious resolution. Rather, Justice Belobaba concluded that section 12 cannot be used to override other mandatory provisions of the Act, and that overriding section 29.1 would be inappropriate as it would not be "fair and expeditious" to either of the parties in the proposed class action.

Justice Belobaba noted that interpreting and applying section 29.1 "as written" best achieves the provision's intended purpose and is "to everyone's advantage (both putative class members and defendants)". This is especially so when the consequence of the dismissal is mostly inconvenient and not "particularly onerous" – such as re-filing the same action with a different proposed representative plaintiff.

Key Take-aways

While the case may serve as a reminder to plaintiffs to be more vigilant in moving matters forward, the case raises some interesting questions for defendants and whether bringing a dismissal motion for delay under section 29.1 is worthwhile when the action can ultimately be refiled with a new representative plaintiff.

It remains to be seen how courts will deal with plaintiffs' attempts for a "do-over" after a dismissal for delay, including whether courts will continue to uphold the statutory objectives of speeding up class action proceedings and the role of strict statutory interpretation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.