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Part II: Interpreting the New Provisions to the CPA - Mandatory Dismissal for Delay under s. 29.1

5 minute read

In our last blog post, we discussed some of the October 1, 2020 amendments to the Class Proceedings Act (“CPA”). In particular, we reviewed one of the first decisions interpreting s. 13.1 of the Act, which sets out the provisions relating to carriage motions.

This is the second post in this blog series, discussing Belobaba J.’s recent decision in Bourque v Insight Productions[1] considering the CPA’s new mandatory dismissal provision contained in section 29.1.

S 29.1 of the CPA

Section 29.1 provides that unless one of the following steps is taken by the first anniversary of the day that the proceeding was commenced, the court “shall, on motion, dismiss for delay a proceeding”:

(a) The representative plaintiff files a final and complete motion record in the motion for certification;

(b) The parties agree to and file with the court a timetable for the 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”; or

(c) The court establishes the type of timetable described under (b).

The Decision

The proposed class action was commenced on February 21, 2020. By virtue of the CPA’s “transition provision” contained in s. 39, actions commenced before October 1, 2020 are deemed to have been commenced on October 1, 2020 for the purpose of section 29.1 and the one-year mandatory dismissal date. In this case, the plaintiff served their certification motion record on October 6, 2021, six days late.

The plaintiff argued that a timetable was established during a prior case conference and that the court retained discretion to not dismiss the action for delay.

At the outset of his reasons, Justice Belobaba noted that “the point of this decision is simple: s. 29.1 of the CPA means what it says.”[2] In dismissing the proposed class action with costs, Justice Belobaba held that no timetable was established by the court. Further, the court concluded that if none of the steps listed in s. 29.1 are taken by one-year after the commencement of the proposed class action, it shall be dismissed for delay. The court does not have any discretion to refuse to dismiss the action.

It was also noted that although s. 12 of the CPA grants the court broad discretionary powers in relation to the conduct of a class proceeding, it cannot be used to override the mandatory provisions of the CPA as this would go against both the statutory language and legislative intent of the Act.[3] The court noted:

If s. 29.1 of the amended CPA is to achieve its intended purpose — to help advance class action proceedings that otherwise tend to move at glacial speed — then it’s to everyone’s advantage (both putative class members and defendants) that the mandatory dismissal provision be interpreted and applied as written. Particularly when compliance is easy and the consequence of non-compliance (dismissal of the action), although inconvenient, is not particularly onerous — in the vast majority of cases, the dismissed proceeding can be refiled against the same defendants with just a change in the proposed representative plaintiff.[4]

Conclusion

The court appears to have taken a narrow view of the newly introduced mandatory dismissal for delay provision, interpreting the provision as just that, mandatory, with little to no discretion for class action motions judges. The court’s proposed solution to overcoming the new s. 29.1 hurdle appears to be to re-file the proposed class action and substitute the proposed representative plaintiff. This proposed solution may be at odds with the legislative intention behind s. 29.1, notably to encourage plaintiff’s counsel to move their cases forward within one year. The class actions bar should be mindful of the one-year dismissal date and factor this date into their tickler systems, as encouraged to do so by Justice Belobaba.[5]

[1] Bourque v Insight Productions, 2022 ONSC 174.

[2] Bourque v Insight Productions, 2022 ONSC 174 at para 2.

[3] Bourque v Insight Productions, 2022 ONSC 174 at para 17.

[4] Bourque v Insight Productions, 2022 ONSC 174 at para 19

[5] Bourque v Insight Productions, 2022 ONSC 174 at para 20.

Jacqueline M. Palef

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Michael Dunk

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