It has been just under a year since the new dismissal for delay provision in s. 29.1 of the Class Proceedings Act started resulting in dismissals for delay. In essentially all of the decisions rendered to date, judges have strictly construed those provisions to require the dismissal of matters where the statutory criteria for avoiding a dismissal are not present. The recent decision of the Ontario Superior Court in Lubus v Wayland Group Corp is now an outlier that takes a different approach.
By way of background, Lubus is a proposed securities class action against Wayland as well as various underwriters. Wayland was in CCAA protection and so the claim against it was stayed. However, the claim against the underwriters was permitted to proceed.
In the case at bar, the claim was issued on September 3, 2019. By October 1, 2021, the certification material had still not been delivered, and there had been no timetable agreed on by the parties. Consequently, the defendants brought a motion to dismiss the action for delay.
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