"Delay in civil proceedings is apt to cause prejudice to the parties," the Saskatchewan Court of Appeal wrote recently. 1 "Unnecessary delay inevitably saps public confidence in the judicial process," it continued, upholding the decision of the Court of Queen's Bench to dismiss a class action for delay. In dismissing the appeal, the court commented pointedly on the policy importance of avoiding delay in the class actions context:
Delay in civil proceedings tends to have deleterious effects on the parties. Witnesses die, become unavailable, or simply forget things. Documents disappear. Costs soar. However, the consequences of delay go beyond the parties to an action. [.] [U]nnecessary delay inevitably saps public confidence in the judicial process as a method for dispute resolution. This is particularly true in the context of a proposed class action which, by its very nature, seeks to advance the interests of people other than the named plaintiffs who are in control of the prosecution of the action. 2
This case - Huard v. The Winning Combination Inc. - sends a powerful signal to class action participants: the rules of procedure can provide tools to address the inordinate and inexcusable delay. This signal is particularly welcome in Ontario, where recent legislative amendments intended to address delay have been weakened through judicial interpretation. Class action defendants and their counsel are reminded by Huard that delay is a pervasive issue in class proceedings, but also that existing and long-standing tools of civil procedure can provide a remedy.
In 2019, the Law Commission of Ontario reported that delay was a "significant issue" in class action litigation, causing potential harm to both class members and defendants. 3 Accordingly, the report recommended that Ontario's Class Proceedings Act 4 be amended to provide for "administrative dismissal" where a plaintiff did not file its certification materials within a year, or otherwise in accordance with a timetable. 5
The Ontario Class Proceedings Act was then amended to include new subsection 29.1(1), 6 which provides that the court "shall" dismiss a class proceeding for delay unless, within a year of the action being commenced, (a) a certification motion record is filed, (b) the parties have filed a timetable for service of the certification motion record or another step to advance the proceeding, (c) the court has established a timetable for service of the certification motion record or another step to advance the proceeding. 7
It took two years for a reported decision to address subsection 29.1(1). In Bourque v. Insight Productions, Belobaba J. granted the defendants' motion under this provision, rejecting the plaintiff's argument that other parts of the Ontario Class Proceedings Act provided the court with discretion to avoid dismissal. 8 Subsection 29.1(1) "means what it says," he wrote. 9 Of note, Belobaba J. also commented on the intended purpose of the provision, observing that it should "help advance class action proceedings that otherwise tend to move at glacial speed [.]." 10
Subsequent cases have taken differing views on how strictly subsection 29.1(1) is to be applied. In LeBlanc at al. v. The Attorney General of Canada et al., Akbarali J. held she had no discretion to delay the effective date of dismissal. 11 However, in Lubus v. Wayland Group Corp., Morgan J. interpreted the provision as not creating a "zero tolerance" regime, 12 finding he had flexibility in interpreting what facts would meet its requirements. Most recently, Perell J. made what he referred to as a "Phoenix order" in D'Haene v. BMW Canada Inc., by which he dismissed the class action for delay "on terms," such that the order would be set aside in thirty days if the plaintiffs filed a certification motion record. 13 To the extent subsequent judges choose to follow the reasoning in D'Haene, its holding undoubtedly dulls subsection 29.1(1)'s teeth.
In this context, the Saskatchewan Court of Appeal's analysis in Huard is a welcome addition to the caselaw. It addresses the court's power to dismiss a class action for delay in circumstances where a narrow administrative provision - like subsection 29.1(1) - may not apply. The defendants applied to dismiss the action under rule 4-44(a) of the Saskatchewan Queen's Bench Rules, which provides that "if a delay occurs in an action," the court may dismiss it where the court is "satisfied that the delay is inordinate and inexcusable and that it is not in the interests of justice that the claim proceed." 14
The Court of Appeal upheld the application judge's conclusion that a 12-year delay met the test in the circumstances of that case. Among other things, it rejected the plaintiffs' various arguments that the leading test under rule 4-44(a) should not apply to proposed class actions.
Given the relatively weak incentive that subsection 29.1(1) provides class counsel under current Ontario law, Huard serves as a reminder to class actions defendants across Canada: The rules of civil procedure may provide a remedy where a class proceeding lies dormant. Section 35 of Ontario's Class Proceedings Act, for example, incorporates Ontario's Rules of Civil Procedure, such that defendants may move under rule 24.01 to dismiss a class action for delay. 15 Indeed, the 2018 case of Smith v. Armstrong et al. is an example of this type of motion. 16 There, the court dismissed a proposed class action that had languished for over 16 years, applying a test that considered whether the delay was inordinate, inexcusable, and prejudicial. If the caselaw under subsection 29.1(1) continues in its current vein, such motions may be on the rise in Ontario.
Footnotes
1 Huard v. The Winning Combination Inc., 2022 SKCA 130 at para 1 [Huard].
2 Huard at para. 86.
3 Law Commission of Ontario, Class Actions: Objectives, Experiences and Reforms Final Report (July 2019) at 18 [Final Report].
4 Class Proceedings Act, 1992, S.O. 1992, c. 6.
5 Final Report at 22.
6 Smarter and Stronger Justice Act, 2020, S.O. 2020 c. 11, Sched. 4; Supporting Recovery and Competitiveness Act, 2021, S.O. 2021, c. 25, Sched. 1.
7 Subsection 29.1(1)(d) also refers to whether "any other steps, occurrences or circumstances specified by the regulations have taken place"; however, no other such steps, occurrences or circumstances have been specified by regulation.
8 2022 ONSC 174 [Bourque].
9 Bourque at para. 2.
10 Bourque at para. 19.
11 2022 ONSC 3257 at para. 15.
12 2022 ONSC 4999 at para. 42.
13 2022 ONSC 5973 at paras. 78, 91.
14 Sask. Q.B. Rules 2013.
15 R.R.O. 1990, Reg. 194.
16 2018 ONSC 2435.
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