In McRae-Yu v Profitly Incorporated et. al., 2024 ONSC 5615 (McRae-Yu) the Ontario Superior Court of Justice refused to dismiss a proposed class action for delay under section 29.1 of the Class Proceedings Act, 1992. McRae-Yu aligns with other decisions that have refused to dismiss proceedings that are not wholly dormant and are being actively pursued in some way. These cases take a functional and contextual (rather than literal) approach to the interpretation of the language of section 29.1, underscoring that section 29.1 is not a “zero tolerance” regime designed to “catch plaintiffs out”.
On its face, section 29.1 requires the mandatory dismissal of a class proceeding if certain steps have not occurred within the first year of the proceeding, including (1) the Court setting a timetable for the completion of one or more steps “required to advance the proceeding”; (2) the filing of a “final and complete” certification motion record; or (3) the filing of an agreed upon timetable for the completion of one or more other steps “required to advance the proceeding”.
In McRae-Yu, no full and final certification motion had been filed within the first year of the proceeding, so the Court considered whether the scheduling of a motion for injunctive relief, and the timetables established by the Court for that purpose, qualified as a “timetable for completion of one or more steps required to advance the proceeding”.
In dismissing the motion, the Court acknowledged that (1) section 29.1 contains mandatory language regarding dismissal leaving little room for judicial discretion; and (2) seeking an injunction is not a step required to advance a proceeding (because seeking an injunction is not a mandatory step in any proceeding). But Justice McLeod nevertheless ruled that the steps taken towards obtaining and resisting the injunction advanced the proceeding.
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