Certified Class Action Dismissed for Delay: Barbiero v. Pollack, 2024 ONSC 1548

  • June 13, 2024
  • Karine Bédard

The recent decision Barbiero v. Pollack, 2024 ONSC 1548, offers guidance to class action practitioners as to when the Court will dismiss a certified class action for delay. In this decision, the Court granted the defendant’s motion under s. 35 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”) and Rule 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the certified class action for delay.

The Court found that 1. the overall delay of 21 years from the commencement of the action was inordinate; 2. the delay had not been explained; 3. the plaintiff had not rebutted the strong presumption of prejudice arising from the lengthy delay; and 4. even if the plaintiff had rebutted the presumption of prejudice, the defendant had been prejudiced by the delay.

Background

In February 2003, the Plaintiff brought a medical negligence class action against a dermatologist who injected “Injectable Grade Liquid Silicone” (“IGLS”) into patients’ lips to provide contour improvement between 1990 and the early 2000s. The class made various allegations against the dermatologist, including that he used an untested, unsanctioned and unlabelled product of unknown composition that he had obtained through an unauthorized and suspect source.

The key dates and steps in this case were:

  • Justice Cullity certified the class action on December 2003.
  • In 2005, on a motion brought by the plaintiff with the consent of Dr. Pollack and Health Canada, Cullity J. ordered Health Canada to deliver the IGLS Sample to Class Counsel’s expert. The purpose of the proposed testing was to confirm whether the sample seized by Health Canada was Dow Corning liquid silicone as claimed by Dr. Pollack, an adulterated form thereof, or some other product.
  • In May 2006, Class Counsel came to the understanding that they would not be able to obtain the sample for testing as Dow Corning refused to provide a sample to use as a control for the tests. The Court found that there was no evidence of any steps taken by Barbiero to advance the action during the next six-and-a-half-year period.
  • In December 2012, the parties attempted to mediate but this did not resolve the case. The Court found that, over the next six years, Class Counsel took no substantive steps to advance this litigation. 
  • In December 2019, Class Counsel wrote to Dr. Pollack’s counsel advising that they wished to have the sample tested and set the matter down for trial. For the next two years, Class Counsel attempted to obtain a control sample of Dow Corning IGLS to compare to the IGLS sample; a control sample was eventually obtained in February 2022. In between these events, Class Counsel sought to amend the 2005 Order. In September 2022, Dr. Pollack served his notice of motion to dismiss the class action for delay. Health Canada advised the parties that it could not locate the IGLS sample and believed it to be lost. Dr. Pollack’s motion to dismiss the class action was scheduled.