The D’Haene v. BMW Canada, 2022 ONSC 5973 decision by Justice Perell is the latest addition to the growing jurisprudence interpreting s. 29.1 of the Class Proceedings Act (“CPA”), otherwise known as the “mandatory dismissal for delay” provision. While previous decisions interpreting s. 29.1 have emphasized the lack of judicial discretion afforded by the mandatory language of the provision[1], D’Haene presents a more flexible and contextual approach to motions for dismissal for delay. Namely, while agreeing that s.29.1 itself does not provide for any judicial discretion, Justice Perell nonetheless found that the Court has jurisdiction to issue a “Phoenix Order” where doing so would be appropriate in the circumstances. A Phoenix Order dismisses an action under s. 29.1 on terms that would provide for the dismissal to be set aside—thus reviving the action. As a result, Justice Perell stated that “s. 29.1 does not necessarily bring class proceedings to an end."
BACKGROUND
The D’Haene action is one of six national actions launched against 12 groups of car manufacturers with respect to air bags that contained a dangerous design defect that posed a serious risk of killing or injuring occupants of the vehicle.
The D’Haene action concerned six of the twelve groups of manufacturers: General Motors, Mercedes-Benz, Mitsubishi, BMW, Ford, and Volkswagen. The D’Haene action was commenced by statement of claim issued on April 11, 2015.
While some of the other companion actions had been settled or had proceeded through the certification motion, the Plaintiffs in the D’Haene action had not yet delivered a certification motion record nor filed a timetable with the Court by June 24, 2022. On that date, three of the Defendants, General Motors, Mercedes-Benz, and Mitsubishi, brought a motion under s. 29.1 of the CPA, to dismiss the action for delay. General Motors reached an agreement with the Plaintiffs and adjourned the motion, leaving only Mitsubishi and Mercedes-Benz as the only two defendants actively pursuing the motion.
POSITION OF THE PARTIES
The moving defendants argued that by not delivering a certification motion record nor filing a timetable with the Court by October 1, 2021, the Plaintiffs had failed to meet the conditions of s. 29.1 and thus the Court must dismiss the action for delay as against them.
The Plaintiffs argued that s. 29.1 allows for discretion and it does not apply to these circumstances. The Plaintiffs argued that the purpose of the provision is to dismiss dormant class actions, and it is not meant to apply to situations where there are six interrelated actions which had been “vigorously litigated”. Second, the Plaintiff argued that s. 29.1 requires that in cases involving multiple defendants, a motion for dismissal for delay must be brought by all defendants. In this case, only two of the six defendants actively pursued the motion.
Please log in to read the full article.