Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5 is the first decision of the Ontario Court of Appeal ("Court") to consider the application of section 29.1(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA").
Section 29.1(1), which was incorporated into the CPA in 2020, requires a class action plaintiff to have taken one of the following steps within one year from the day the proceeding was commenced or face dismissal of the proceeding for delay: (a) the filing of a final and complete motion record for certification; (b) the filing with the court of the parties' written agreement to a timetable for service of the representative plaintiff's motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding; (c) the establishment by the court of a timetable for service of the representative plaintiff's motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding; (d) any other steps, occurrences or circumstances specified by the regulations have taken place. Pursuant to section 39(2) of the CPA, all proceedings commenced prior to October 1, 2020 are deemed to have been commenced on October 1, 2020 for the purpose of section 29.1(1).
In Tataryn the plaintiffs appealed a decision of a motion judge dismissing a putative class proceeding for delay under that provision. The key issue before the Court was the meaning of a timetable "for completion of one or more other steps required to advance the proceeding" in section 29.1(1)(c), it being clear that the representative plaintiffs had not taken any of the other steps specified in sections 29.1(1)(a), (b) or (d) within one year of the commencement of the claim.
The Court adopted a contextual approach to interpreting section 29.1(1), observing that the purpose of the provision is to avoid delay in the pursuit of class actions. This supported its conclusion that the provision should be applied strictly. If the plaintiff has failed to take any of the enumerated steps within a year of the commencement of the proceeding, the motion judge has no discretion and must dismiss the proceeding.
However, motion judges have some flexibility in determining whether the remaining requirements are satisfied. A contextual approach should be taken in addressing whether a timetable for the completion of one or more steps "to advance the proceeding" has been established. That requires the motion judge to decide, on a case-by-case basis, and with regard to the totality of the proceeding, whether the completion of a particular step that was timetabled was "required to advance the proceeding". This may include consideration of the following:
- The nature of the step that was timetabled. Timetabling of a step "required to advance the proceeding" should be interpreted to include at least the types of motions that the CPA itself treats as valuable and necessary pre-certification steps, such as motions that may dispose of the proceeding in whole or in part or narrow the issues to be determined or the evidence to be adduced in the proceeding, which are required by section 4.1 of the CPA to be heard and disposed of before the motion for certification unless the court orders them to be heard together.
- Whether compliance with the one year deadline has otherwise been materially impeded by delay arising from the scheduling of a motion, such as a motion to strike the claim.
- Whether the defendants have engaged in "obstructionist conduct...designed to delay so as to gain the benefit of the statutory provision".
- Whether the plaintiffs' conduct prevented a timetabled step from advancing the proceeding.
The plaintiffs' own conduct was a determinative factor both for the motions judge and the Court, which upheld the decision to dismiss the action for delay under section 29.1(1) more than five years after the commencement of the action in May 2018.
The Court rejected the plaintiffs' submission that the motion judge erred in finding that certain steps in the action did not constitute steps "required to advance the proceeding". In particular, the Court agreed that the motion judge's directions in May 2020 that the plaintiff deliver a statement of claim within 45 days, and that the plaintiff arrange for a further case conference for further directions were "inconsequential". A July 2020 case conference at which dates were set for the exchange of material and the hearing of the defendant's motion to strike also did not meet the requirements of section 29.1(1)(c) considering the history of the proceeding and the plaintiffs' own conduct that prevented the motion to strike from advancing the proceeding. (Following argument of the defendant's motion to strike, which the motions judge granted in April 2021 with leave to amend, the plaintiffs delivered amended pleadings which failed to comply with the order granting leave to amend, resulting in further pleadings-related motions in 2022. Ultimately the plaintiff did not deliver the certification record until June 2023).
The Court did not accept the plaintiff's submission that the motion judge erred by concluding that the conduct of the defendants did not amount to waiver of section 29.1(1), noting also that it was unnecessary for it to decide whether that provision precludes waiver because it engages a substantial public interest.
The Court also rejected the plaintiff's argument that the motion judge erred in declining to grant what was described by Justice Perell in D'Haene v. BMW Canada Inc., 2022 ONSC 5973 as a "Phoenix order" providing for leave to start a new action. The Court agreed with the motions judge that in the circumstances of the case, such an order would be contrary to the policy goal underlying section 29.1(1).
Key Takeaway
This decision highlights the importance of plaintiff's class counsel developing a coherent theory of the claim and the basis for a certification order prior to commencement of the action in order to permit it to prosecute the motion for certification with diligence and avoid potential dismissal for delay under section 29.1(1) of the CPA.
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