Ontario Court Of Appeal Endorses A Flexible And Contextual Approach To Dismissal For Delay Under The Class Proceedings Act, 1992

In Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5 (Tataryn), the Ontario Court of Appeal clarified the test for determining whether a proposed class action should be dismissed for delay under section 29.1 of the Class Proceedings Act, 1992, SO 1992, c 6.

Section 29.1 states that the Court shall, on motion, dismiss an action for delay unless, within a year of the proceeding being commenced, one of certain steps are taken. Those steps include (1) the representative plaintiff filing a full and complete certification motion record, (2) the parties agreeing to a timetable for the delivery of the plaintiff's certification record, or for the completion of one or more steps required to advance the proceeding, and filing the timetable with the court, or (3) the Court setting a timetable for the delivery of the plaintiff's certification motion record, or for the completion of one or more steps required to advance the proceeding.

The Court held that when determining whether a proposed class action should be dismissed for delay:

1. there is no judicial discretion in respect of the one-year deadline;
2. determining whether a timetable has been established will usually be straightforward; and
3. determining whether the timetable meets the criteria of "one or more steps required to advance the proceeding" requires a contextual approach—the case management judge should consider the "totality of the proceeding".

The Court's analysis primarily focused on how to determine whether the statutory criteria requiring the "completion of one or more steps required to advance the proceeding" had been met.

The Court endorsed the approach in Lubus v. Wayland Group Corp., 2022 ONSC 4999, and McRae-Yu v. Profitly Incorporated et. al., 2024 ONSC 5615, finding that "[a] contextual interpretation is to be given to the interpretation of s. 29.1(1). It is not simply a mechanical exercise", and that "there is some flexibility associated with the interpretation to be given to 'completion of one or more steps required to advance the proceeding'".

The contextual approach permits a motion judge to consider:

1. the conduct of the parties, including any "obstructionist" conduct; and
2. delay arising from motion scheduling, particularly given the current availability of motion dates.

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• In Tataryn, the Court determined that none of following met the criteria for the "completion of one or more steps required to advance the proceeding": (1) the motion judge's May 8, 2020 direction that Tataryn deliver a statement of claim within 45 days; (2) the motion judge's direction on the same day that Tataryn arrange another case conference for further directions after delivery of the statement of claim; and (3) a July 10, 2020 case conference where dates were set for the exchange of materials and the hearing of the respondent's motion to strike. The Court held the first two steps were "inconsequential" and that the third step did not qualify because the plaintiffs' own conduct prevented the motion to strike from advancing the proceeding.
• The Court also held that:
  • using a Phoenix order as in D'Haene v. BMW Canada Inc., 2022 ONSC 5973 to revive an action dismissed for delay would be "directly contrary to the policy goal" underlying section 29.1; and
  • refiling an identical proposed class action with a different representative plaintiff after an action is dismissed for delay arguably "circumvents the spirit of" section 29.1.