In its recent decision in Tataryn v. Diamond & Diamond Lawyers LLP1, the Court of Appeal for Ontario upheld a motion judge's decision dismissing a proposed class action for delay. The Court's decision provides the latest interpretation of section 29.1 of the Class Proceedings Act, which enables a party to dismiss a proposed class action for delay one year or longer after its issuance.
What you need to know
- Dismissal for delay provision is to be strictly applied. The Court confirmed that there is no discretion in applying the one-year deadline under section 29.1.
- Steps to advance the litigation cannot be inconsequential. Although a schedule that includes steps to advance the litigation can avoid the one-year deadline under section 29.1, such steps must be considered in the context of the action as a whole and cannot be "inconsequential".
- Plaintiffs cannot circumvent dismissal for delay by creative tactics. So-called "Phoenix orders" and late filing a certification record are both insufficient means of salvaging a delayed proposed class action.
Background
In 2020, the Ontario legislature introduced section 29.1 to the Class Proceedings Act, which enables a party to bring a motion to dismiss a proposed class action for delay within a year of commencement, unless:
- the representative plaintiff has filed a motion record for certification; or
- the parties have filed, or the court has established, a timetable for the certification record or the "completion of one or more other steps required to advance the proceeding".
The class action in Tataryn was commenced in 2018; the one-year dismissal for delay deadline expired in October 2021 through operation of the transition provision.
In June 2020, the representative plaintiff delivered a statement of claim. In April 2021, the claim was struck and stayed against 11 of the 12 named defendants. Over the course of the two years, plaintiff's counsel sought to amend the statement of claim seven times, in response to various objections from defence counsel. In January 2023, the court ordered the plaintiff to comply with its April 2021 order, striking parts of the latest claim and granting leave to amend others. In June 2023, the representative plaintiff delivered an eighth amended claim and motion record for certification. The court set the certification hearing for May of the following year, but the motion was never heard because in November 2023, the motion judge granted the defendant's section 29.1 motion and dismissed the action for delay. The Court of Appeal agreed with this decision.
No discretion in respect of the one-year deadline
The Court of Appeal explained that the legislature enacted the mandatory dismissal for delay provision with a view to avoiding class action delay, which is harmful because it uses "valuable court resources" and presents "significant financial and reputational risks" for businesses. The Court confirmed that these purposes inform the interpretation of section 29.1, which should be applied strictly. There is no judicial discretion in the one-year deadline, absent one of the exceptions applying. Once a motion judge finds that no certification record has been filed or that no timetable for completion of one or more other steps required to advance the proceeding has been established, "the proceeding must be dismissed".
Assessing "one or more steps required to advance the proceeding" is contextual
The question of whether a timetable for "one or more steps required to advance the proceeding" has been established is a flexible and contextual one. A step could include the delivery of affidavits of documents, examinations under oath, or motions: all "steps" recognized by the Rules for Civil Procedure. Whether any such step qualifies to meet the section 29.1 requirement is a case-by-case question for the case management judge, who has to "consider the totality of the proceeding and whether the completion of the step that was timetabled was required to advance the proceeding".
"One or more other steps required to advance the proceeding" should be interpreted to include at least the kinds of motions that the CPA itself treats as valuable and necessary pre-certification steps. This includes a motion to strike pleadings and other steps that may be taken by a defendant that introduce delay into a proceeding. This is especially so if a pre-certification motion cannot be heard for some time because of court delays. These are the sorts of contextual circumstances—in the totality of the action—that a motion judge should consider in assessing whether one or more steps required to advance the proceeding have been scheduled.
The Court of Appeal went on to hold that "inconsequential acts" in the conduct of a proceeding do not meet the parameters of section 29.1, and to allow otherwise would neuter the provision. In the specific circumstances of Tataryn, these inconsequential acts include a judicial direction to deliver a statement of claim and a direction to arrange for a further case conference.
The scheduling of the defendant's motion to strike also did not constitute a "step required to advance the proceeding". Although motions to strike could potentially be required to advance the proceeding, in this particular case, the representative plaintiff prevented the motion from advancing the proceeding by contesting the motion to comply with the court's original order in the motion to strike. Applying a contextual approach, the court found that the representative plaintiff had not shown that a timetable for completion of one or more other steps required to advance the proceeding had been established. This was especially true because the plaintiff had had the benefit of a number of extra years—the defendant itself applied the deadline flexibly, giving the plaintiff "more than ample time to get its house in order".
Serving a certification record past the one-year deadline does not salvage the action
The representative plaintiff delivered its certification motion record in June 2023, and the certification motion record was scheduled for the year after. Despite the pending motion, the court still dismissed the proceeding for delay, demonstrating that serving a certification motion record beyond the one-year period cannot save a proposed class action from the operation of section 29.1. Indeed, the Court of Appeal observed that ultimately, the motion record was served 20 months after the deadline—and while not germane to the calculation of the one-year period itself, it served as an example of the "mischief" the dismissal for delay provision "was designed to address".
Phoenix orders undermine the dismissal for delay provision
The Court also observed that so-called "Phoenix orders"—which dismiss the present class action but grant leave to bring a new action with different representative plaintiffs—are contrary to the spirit of section 29.1. The Court agreed with the motion judge's observation that the dismissal for delay provision "would not address the problem it set out to address if a plaintiff can bring an action, delay it until it gets dismissed under section 29.1, and then just start a new action as if nothing had happened".
Implications
The Court of Appeal for Ontario's decision in Tataryn is an example of the Court cracking down on delay in class actions, consistent with recent developments in the Court's approach to dismissal for delay of certified class actions that have not advanced (an issue we discussed in a previous bulletin). The Court made clear that the one-year deadline set out under section 29.1 of the Class Proceedings Act is non-discretionary and requires a proposed class action be dismissed if the provision's requirements are not met. To the extent a representative plaintiff seeks to rely on the "one or more steps to advance the litigation" exception, it must show those steps actually did advance the litigation, rather than being inconsequential.
The Court also limited arguments litigants may seek to make to circumvent application of the provision by clarifying that neither a late-breaking certification record nor a so-called "Phoenix order" can save a proposed class action that has been delayed beyond the one-year deadline. The Court's decision provides a helpful precedent to defendants faced with proposed class actions that plaintiffs delay in advancing.
Footnote
1 Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5.
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