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.
Issue 1: The test for dismissal for delay was met on the evidence before the Court
The Court applied the test from Langenecker v. Sauvé, 2011 ONCA 803, (“Langenecker”) at paras. 4-7 that an action will be dismissed for delay where the delay (i) is “inordinate”, (ii) is “inexcusable”, and (iii) results in a “substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay”, whether through an unrebutted presumption of prejudice or by evidence of actual prejudice to the defendant’s ability to have the case adjudicated on its merits.
The delay was inordinate
In Langenecker, Sharpe J.A. held that the inordinance of the delay is measured by reference to the length of time form the commencement of the proceeding to the motion to the dismiss. While there is no set amount of time that makes a delay “inordinate”, the Court observed that delays of 5-7 years had been determined to be inordinate. The Court found that the 21-year delay from the commencement of the class action was inordinate.
The delay was inexcusable
In determining whether delay is inexcusable, the court considers the reasons offered for the delay and whether those reasons provide an adequate explanation, with regard to the credibility of the explanations, the explanations for individual parts of the delay, the overall delay, and the effect of the explanations considered as a whole.
Here, the plaintiff filed no evidence to explain the 21-year delay. Class counsel attached transcripts from examinations for discovery to an affidavit. The affidavit filed by Class Counsel addressed certain steps Class Counsel took up to 2006 to locate a Dow Corning sample to compare against the IGLS Sample. The affidavit then skipped ahead 6 years to the December 2012 mediation and then 7 years to the steps taken in 2020 to locate another laboratory to test the IGLS Sample. Those delays were unexplained; the Court found the delay to be inexcusable.
The plaintiff failed to rebut the presumption of prejudice
The Court held that a “strong” and “heavy” presumption of prejudice arose because the delay consisted of 21 years, there was no reasonable explanation provided, and there were lengthy periods of time when the Plaintiff took no steps to advance the action.
The plaintiff failed to rebut the presumption of prejudice. A core aspect of the common issues trial was whether Dr. Pollack used an adulterated IGLS product or a Dow Corning product. While the plaintiff alleged that neither product would have been legal to use on Dr. Pollack’s patients, the plaintiff alleged the use of an adulterated, untested, and unknown product as a basis of Dr. Pollack’s liability. He was entitled to defend the action on the basis that (i) he used the Dow Corning IGLS product and (ii) even if he used an adulterated version, that product was safe. The plaintiff has filed no evidence to establish that Dr. Pollack would not be prejudiced by the passage of time to defend his positions, a prejudice which is presumed by the court.
In addition, causation and damages issues for all class members would need to be determined on an individual basis; some of those records dated back 33 years. The plaintiff led no evidence to rebut the presumption that those records would not be available and that memories would fade.
The defendant suffered actual prejudice
Dr. Pollack had suffered actual prejudice due to the loss of the IGLS sample. The common issue remained before the court as to whether Dr. Pollack breached the standard of care by using an adulterated IGLS product which was unsafe for his patients. It is only in the alternative that the plaintiff alleged that liability existed even if the IGLS used by Dr. Pollack was a Dow Corning product. Without access to the IGLS Sample, Dr. Pollack was prejudiced in his ability to prove that the IGLS was a Dow Corning product and/or a medical grade product. Without testing, Dr. Pollack was unable to establish that the IGLS could not have caused the alleged injuries.
Issue 2: The Court Should Exercise its Jurisdiction to Make an Order Dismissing the Class Action for Delay
The court has jurisdiction to make an order under r. 24.01 to dismiss an action for delay
The Court relied on s. 35 of the CPA for the principle that the Rules apply to class proceedings. Given the absence of an exclusion, r. 24.01 applies to class actions. This conclusion was supported by s. 29(2) of the CPA, which contemplates that a proceeding may be dismissed for delay, without any distinction drawn between proposed or certified class actions.
Moreover, there were precedents where courts applied r. 24.01 to dismiss proposed class actions for delay prior to legislative amendments to the CPA bringing s. 29.1 into effect.
The court has inherent jurisdiction to dismiss an action for delay
Relying on Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671, the Court also held that it could dismiss an action for delay pursuant to its inherent jurisdiction and that the same principles applied to a certified class action.
Conclusion
The Court exercised its discretion to dismiss the class action for delay. The Court deemed this order necessary to protect against the presumed and actual prejudice to Dr. Pollack arising from the evidence before the court.
A key takeaway is that if a representative plaintiff in a certified class action fails to move the action forward, resulting in a delay that meets the Langenecker test, then the court has jurisdiction to dismiss the certified class action for delay. Where there is a substantial risk that a fair trial of the issues in the litigation will not be possible because of inordinate and inexcusable delay, through a presumption of prejudice or by evidence of actual prejudice, the class action may be dismissed for delay, regardless of whether it is a proposed or certified class action.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.