By Kayla Sager
In Tataryn v Diamond & Diamond Lawyers LLP,[1] the Ontario Court of Appeal upheld the dismissal of a class action for delay under section 29.1 of the Class Proceeding Act which came into force on October 1, 2020.
Justice Pepall, writing for the panel addressed the application of s. 29.1(1) of the CPA, which mandates the dismissal of class actions for delay unless specific steps are taken within one year of initiating the proceeding.
This decision is one of the first appeal decisions on the requirements of s. 29.1 and provides some assistance when considering a s. 29.1 motion.
Factual Background
In May 2018, the appellant, William Tataryn, initiated proceedings against the respondent law firm, Diamond & Diamond Lawyers LLP, alleging breaches of fiduciary duties, and violations of the Solicitors Act and the Consumer Protection Act.
The proceeding commenced as an Application, underwent various amendments, and was then converted into a class action in 2020 by way of Statement of Claim. In the subsequent years, there were significant delays in the action, including multiple amendments to the pleadings, an addition of a new plaintiff, and six case conferences.
In May 2023, five years from the commencement of the case, three years following the enactment of s. 29.1(1), and two years from the s. 29.1(1) deadline, the Plaintiff filed a Notice of Motion and Motion Record for Certification.
The Decision Under Appeal
The defendant’s brought a motion to dismiss for delay under s. 29.1(1) and Justice Morgan granted the relief requested.
Justice Morgan held the language of s. 29.1(1)(a) through (d) was mandatory. In considering the language of the section he held s. 29.1(1) assumed that the action had already been commenced, and s.29.1(1)(c) sets out a requirement for a step to be taken towards to certification. The steps must be more than a foundational step that arises at the pleadings stage.
Justice Morgan acknowledged that s. 29.1(1) required a case-by-case analysis, and rejected the applicant’s argument that challenges to a pleading or motions to strike pleadings amounted to “steps” as required by s. 29.1(1)(c).
The court rejected the submission the respondent waived its s. 29.1(1) rights and declined to grant a “phoenix” order for leave to start a new action.
Appeal
The central issue before the Appeal Court was the meaning of a timetable “for completion of one or more of the steps required to advance the proceeding” in s. 29.1(1)(c) of the CPA. The Court upheld the decision of the Motions Court.
The Court of Appeal held in there is no judicial discretion regarding the one-year time deadline in s. 29.1 (1). Justice Pepall confirmed s.29.1(1) does not support a “mechanical administrative dismissal” and adopted a contextual approach to interpreting the section.
The Court highlighted the case-by-case considerations must take into account of the totality of the proceeding and whether the completion of a step that was timetabled was required to advance the proceeding. Factors to consider include the nature of the timetabled steps, delays arising from motion scheduling, and whether the defendant engaged in obstructionist conduct designed to delay the proceedings.
In the case at hand, the appellants submitted steps had been taken that met the requirements of s. 29.1(1) including delivering a Statement of Claim within 45 days; scheduling another case conference for further direction, and the July 2020 case conference where dates were established for the exchange of motion materials and the hearing of the respondent’s motion to strike.
The Court held the first two steps were inconsequential and did not amount to steps required to advance the proceeding towards certification. The appellant’s conduct necessitated the case conference and therefore, did not advance the action forward.
Justice Pepall held 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 (this is a hard and fast rule);
- 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 – and the judge should consider the “totality of the proceeding”.
Takeaways
The Court of Appeal’s decision in Tataryn provides important takeaways and leaves an unanswered question.
Tataryn confirms s. 29.1(1) will be applied by considering the context of the case and the steps required to advance different types of class actions. It highlights the significance of the actions of the parties including a plaintiff’s proactive behavior as well as a defendant’s obstructionist actions.
While the amendments to s. 29.1(1) may not lead to the strict timelines being followed in all cases, it provides a useful tool in circumstances where plaintiffs do not move the matter forward. However when s. 29.1(1) is applied by the court it is possible counsel will commence an identical action with a new representative plaintiff. Even with this uncertainty s. 29.1(1) deadline dates should be calendared in every class action and a motion should be considered.
[1] 2025 ONCA 5
