Many class actions take several years to litigate. Some may take even longer, because they sit idle for months or—in some cases—decades. In late 2024 and in early 2025, the Ontario Court of Appeal issued two decisions clarifying how courts should deal with such lingering cases.
In Tataryn, the Court of Appeal held that a court has a degree of flexibility in determining whether to dismiss for delay under section 29.1 of the Class Proceedings Act, 1992 (CPA).
In Barbiero, the Court of Appeal held that the passage of enough time constitutes sufficient prejudice meriting the dismissal of an action for delay under rule 24.01 of the Rules of Civil Procedure (Rules).
Taken together, the decisions suggest that class action defendants will face an uphill battle in having a class action dismissed for one year of delay under section 29.1 of the CPA absent exceptional circumstances, but the Court will be increasingly open to dismissing actions under the Rules where there are lengthier litigation delays.
Section 29.1 (and its equivalent provisions in other jurisdictions, such as section 41 of the Class Proceedings Act, RSPEI 1988, c C-9.01) 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 is taken. Those steps include
Certain early decisions applying section 29.1 took a strict approach, finding that judges had no discretion and dismissal was mandatory if none of the applicable steps had been taken.
As the case law developed, an increasingly flexible and contextual approach emerged, resulting in uncertainty about how section 29.1 would be applied.
In Tataryn, the representative plaintiffs commenced a class proceeding in 2018, alleging that the defendant had breached, among other things, fiduciary duties regarding client referral practices and contingency fee arrangements, and consumer protection legislation.
In 2023, the defendant moved to dismiss the action for delay under section 29.1 of the CPA. The question before the Court was whether the Court had established 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.”
The Court clarified the analysis to be conducted under section 29.1, finding that
The Court confirmed that in applying the contextual approach, a motions judge may consider the conduct of the parties, including any “obstructionist” conduct and delay arising from motion scheduling, particularly given the current limited availability of motion dates.
The Court ultimately concluded, following a detailed review of the procedural history of the matter, that certain of the procedural steps relied upon by the appellants were “inconsequential” and that even applying a contextual approach, the appellants could not show that a timetable for completion of one or more other steps required to advance the proceeding had been established.
Rule 24.01 permits a defendant to move to have an action dismissed for delay where the plaintiff has failed to, among other things, set the action down for trial within six months following the close of pleadings.
It (and its equivalent provisions in other jurisdictions, such as Rule 167 of the Federal Courts Rules, SOR/98-106; Rule 22-7(7) of the Supreme Court Civil Rules, BC Reg 168/2009 and Rule 4.31 of the Alberta Rules of Court, Alta Reg 124/2010) provides defendants an alternate basis upon which to seek to dismiss a proposed class action for delay.
In Barbiero, the appellant sought to set aside the dismissal of a 21-year-old certified class proceeding involving allegations that the defendant physician had unlawfully injected Liquid Injectable Silicone or Grade Liquid Silicone into patients’ lips and facial contours.
Prior to Barbiero, the analysis to be conducted under Rule 24.01 was set out in Langenecker v Sauvé, 2011 ONCA 803 (Langenecker).
Under the Langenecker approach, the existence of delay or the passage of time created a rebuttable presumption of prejudice to the defendant.
However, in Barbiero, the Court of Appeal of its own initiative held that the Langenecker approach is “out of step with the contemporary needs of the Ontario civil system,” including because it focuses on justifying delay rather than achieving the most expeditious determination of civil proceedings.
The Court held that delay or the passage of time may, on its own, constitute sufficient prejudice to dismiss an action for delay.
In finding that the appellant’s delay was inordinate, the Court highlighted that Rule 48.14(1) obliges the Registrar to dismiss an action for delay where it has not been set down for trial or terminated by the fifth anniversary of its commencement. Barbiero, in contrast, had not been set down for trial after about two decades.
The Tataryn and Barbiero decisions pull in different directions to a certain extent—Barbiero emphasizes that defendants are prejudiced when actions are delayed, whereas, in some cases, Tataryn will provide judges with increased flexibility and discretion to refuse to dismiss for delay.
Tataryn may have a chilling effect on defendants moving to dismiss class actions for delay under section 29.1 of the CPA except in the clearest of circumstances, due to the flexibility afforded to the Court in considering whether to dismiss for delay.
Barbiero is a helpful decision for defendants, which includes forceful language from the Court of Appeal. The Barbiero decision is a helpful reminder that dismissal for delay under the Rules may be a more appropriate avenue to pursue when seeking the dismissal of aging class actions.
Given the strength of the Barbiero precedent, there is a good chance that defendants bring motions for dismissal relying on Barbiero over the course of the next year, providing further insight into the answer to the million-dollar (or in some class actions, billion-dollar) question, how much delay is too much?