Alex Payne comments on one of the cases included in Law360 Canada’s annual coverage of its Top 10 business decisions in Canada.
He offers his insights on Barbiero v Pollack, 2024 ONCA 904—where the Ontario Court of Appeal reversed a 13-year-old precedent from the court finding that the passage of time established only a rebuttable presumption of prejudice in favour of a finding that the passage of time could, on its own, constitute sufficient prejudice to dismiss an action for delay.
Alex believes the decision’s impact is significant, partly because the class action had already been certified.
“What’s striking to me is that the court reviewed the existing precedent on its own initiative and produced some pretty strong language about the importance of pushing things forward in an era where the system is so bogged down,” he says. “There are a lot of quotable quotes in the reasons that defendants seeking dismissals can seize on, and although there may be a judicial instinct to keep cases alive, Barbiero significantly widens the opportunity for dismissal.”
Barbiero v Pollack was honourable mention #1 in Law360’s 2024 rankings.
Alex has previously written on the case in a Bennett Jones blog, Ontario Court of Appeal Changes the Test Under Rule 24.01—The Passage of Time is Prejudicial.