Don’t Delay: Ontario Court of Appeal Updates Dismissal for Delay Test and Finds It Applies to Class Actions

The recent decision of the Court of Appeal for Ontario in Barbiero v Pollack[1] involved a motion for dismissal for delay of a 21-year-old class action. Although the decision was made in the context of an exceptionally long delay, this unanimous decision authored by Justice Brown provides helpful new guidance concerning less lengthy delays as well and the legal principles governing dismissal for delay motions in Ontario in class actions.

THE FACTS

This decision was made in the context of a 21-year-old certified medical negligence class action against a dermatologist. The class action alleged that the defendant dermatologist unlawfully used a liquid silicone product not approved for use in Canada in the treatments he provided to the plaintiff and class members.[2]

The action was commenced in February 2003. Ten months later, in December 2003, the action was certified on consent as a class proceeding.[3] Some discoveries took place in 2004 and 2005, and in 2012, the parties held an unsuccessful one-day mediation. In 2019, seven years following the unsuccessful one-day mediation, the plaintiff informed the defendant that she wished to arrange for testing of the liquid silicone product sample previously seized by Health Canada and to set the matter down for trial.[4] By 2022, the matter still had not been set down for trial, despite the passage of almost 20 years; so, the defendant moved to dismiss the action for delay.[5]

THE MOTION JUDGE'S DECISION

The motion judge, Justice Glustein, applied s. 35 of the Class Proceedings Act, 1992 (“CPA”)[6] and r. 24.01 of the Rules of Civil Procedure (“Rules”)[7] and dismissed the action for delay.[8]

In his fairly lengthy reasons, Justice Glustein applied the three-part test outlined by the Court of Appeal in its 2011 decision in Langenecker v Sauvé (“Langenecker”).[9] Pursuant to that test, an action will be dismissed for delay where:

(1) the delay is inordinate;

(2) the delay is inexcusable; and,

(3) the delay results in a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay, including because of prejudice to the defendant, which can be established 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.[10]

Justice Glustein found that the defendant had satisfied the three-part test: (1) the 21-year delay was inordinate; (2) the delay was inexcusable, as the plaintiff did not explain why she had allowed the action to linger for more than two decades; and, (3) the lengthy delay resulted in a substantial risk that a fair trial of the issues in the litigation would not be possible. The plaintiff did not rebut the strong presumption of prejudice arising from the lengthy delay, and the defendant led evidence of actual prejudice to his defence.[11]

Justice Glustein rejected the plaintiff’s arguments (1) that the court should not dismiss a certified class action for delay because there was no precedent to do so; and, (2) that the court should not dismiss a certified class action for delay because class actions are subject to a robust case management system through which any concerns the defendant has with respect to the pace of the action could be addressed.[12]

Seeking to set aside the dismissal, the plaintiff appealed on three grounds:

(1) that the motion judge erred in finding the 21-year delay inordinate and inexcusable;

(2) that the motion judge erred in finding prejudice; and,

(3) that the motion judge erred in dismissing the action in light of the ability of class members to commence a new action.[13]

THE COURT OF APPEAL'S DECISION

The Court of Appeal began its analysis with a reminder that in our current civil court system, the plaintiff has an obligation to move the proceeding to its final disposition. Because this burden falls on the plaintiff, so do the consequences of any delay or stalling, absent resistance from a defendant to proceed to a final disposition on the merits (of which there was no evidence on the facts in the case at bar).[14] The Court then emphasized that this obligation and the consequences for failing to meet it apply to all civil proceedings, including certified class actions.[15]

From this reminder, the Court then moved to scrutinize the Langenecker decision and its approach to delay.[16]

As stated above, the motion judge applied the principles set out in the Court of Appeal’s decision in Langenecker to dismiss the action for delay.[17] Interestingly, in her appeal, the plaintiff did not contend that the motion judge had erred in identifying those principles as the governing principles. Instead, she argued that the motion judge had misapplied them. The Court of Appeal was troubled that a plaintiff could seek to find refuge in Langenecker to defend her failure to set down an action for trial more than 20 years after its commencement. This signalled to the Court that the Langenecker approach to delay is out of step with the contemporary needs of the Ontario civil court system.[18]

The shortcomings of the Langenecker approach make sense given (1) that the principles behind that approach were drawn from a 1968 decision of the Court of Appeal of England and Wales; (2) that much has changed in the civil court systems of both Ontario and England since 1968; and, (3) that the Court of Appeal’s decision in Langenecker pre-dated the Supreme Court of Canada’s decision in Hryniak v Mauldin (“Hryniak”),[19] which criticized the contemporary Ontario civil court system’s indifference to delay and called for a culture shift to achieve prompt judicial resolution of legal disputes.[20]

The Court of Appeal explained that effecting a culture shift “requires not only changing the entrenched culture of indifference to delay manifested by far too many litigants and their counsel, but also identifying and changing those judge-created rules or interpretative glosses that do not promote – and in some cases impede – the ‘prompt judicial resolution of legal disputes’.”[21]

The Court of Appeal did not agree with the Langenecker approach in that, under that approach, delay or the passage of time on its own cannot constitute harm or prejudice sufficient to support the dismissal of an action for delay. The Langenecker approach merely treats the existence of delay as giving rise to a rebuttable presumption of prejudice – that is to say, that the lingering of an action in our courts for over two decades may or may not result in a harm or prejudice; it all depends.[22]

The Court of Appeal found this to be too lax of an attitude towards delay and that clinging to such a lax attitude would prevent Ontario’s civil courts from achieving the culture shift the Supreme Court of Canada demanded in Hryniak.[23]

The Court of Appeal emphasized a key element of the general principle for civil litigation set out in r. 1.04(1) of the Rules,[24] namely, to secure the most expeditious determination of every civil proceeding on its merits. The Court of Appeal found the Langenecker decision’s tolerant attitude towards delay to be out of step with this principle. Langenecker focuses more on justifying delay rather than achieving the most expeditious determination of civil proceedings.[25]

In very clear terms, the Court of Appeal stated that to the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay (as opposed to constituting merely a rebuttable presumption of prejudice), it should not be followed.[26]

The Court of Appeal then addressed the plaintiff’s grounds of appeal.[27]

The Court of Appeal did not agree with the plaintiff that the motion judge had erred by finding that the 21-year delay in this action was inordinate and inexcusable. According to the Court of Appeal, the motion judge’s finding that the 21-year delay was inordinate was irreproachable, and the plaintiff’s contention that it was not was incomprehensible.[28]

The Court of Appeal explained that to be “inordinate,” a delay must be unusually large or excessive. In the context of applying r. 24.01, that assumes the existence of a benchmark that sets out the ordinary or normal amount of time that it should take a civil proceeding to move from its commencement to its setting down for trial.[29] The Court of Appeal clarified that such a benchmark exists in r. 48.14(1)1 of the Rules,[30] which provides that an action shall be administratively dismissed for delay where it has not been set down for trial within five years of being commenced.[31]

Moving on to whether the delay was inexcusable or unexplained, the Court of Appeal noted the motion judge’s finding that there was no affidavit evidence from the plaintiff explaining the delay and that class counsel’s affidavit did not explain the reasons for the delay either.[32] The plaintiff argued that the motion judge misapprehended the evidence and erred in finding that there was no evidence the plaintiff took any substantive steps, particularly during a seven-year period from the unsuccessful one-day mediation in December 2012 to December 2019. The plaintiff pointed to a series of letters sent by defence counsel as evidence of her efforts to move the action forward. The Court of Appeal found that this series of letters, to which the plaintiff’s counsel did not respond in any substantive way, (1) contradicted the plaintiff’s contention that a process of post-mediation settlement negotiation took place during that seven-year period; and, (2) fully supported the motion judge’s finding that there was no evidence that the plaintiff took any substantive steps during that period of time. The Court of Appeal found that class counsel, “for whatever reason, simply ignored the lawsuit for the better part of seven years.”[33]

The plaintiff attempted to lessen the length of her delay by arguing that the starting point for assessing delay should be the unsuccessful one-day mediation in December 2012 – not the commencement of the proceeding in February 2003. The Court of Appeal disagreed and clarified that for the purposes of a r. 24.01 delay analysis, time starts to run from the commencement of the proceeding.[34]

The Court of Appeal found no palpable and overriding error in the motion judge’s findings that the plaintiff’s delay was inordinate and inexcusable.[35]

The Court of Appeal did not agree with the plaintiff that the motion judge had erred in finding prejudice. It saw no basis upon which to interfere with his conclusion there.[36]

The Court of Appeal also did not agree with the plaintiff that the motion judge had erred in exercising his discretion to dismiss the class action.[37] The plaintiff argued that the Court should not dismiss a certified class action for delay because class actions are subject to robust case management through which any concerns the defendant has with respect to the pace of the action could be addressed. The Court of Appeal found this argument to be ironic. Since its commencement in 2003, the action was the beneficiary of single-judge case management in Toronto. The plaintiff and class counsel did not provide any explanation for why they failed to take advantage of such preferential access to judicial resources over the course of almost two decades.[38]

The plaintiff also argued that it would be inefficient to dismiss the certified class action when other class members could commence a new action given the suspension of the limitation period by operation of s. 28 of the CPA.[39] The Court of Appeal rejected this argument, noting that the record did not contain an affidavit from any class member indicating a willingness to commence a new action in the event of dismissal.[40]

Finally, the plaintiff argued that dismissing the action would be contrary to the overarching goals of the CPA of achieving access to justice, judicial economy, and behaviour modification. Again, the Court of Appeal disagreed. The Court of Appeal emphasized:

(1) that the Rules apply to class proceedings;

(2) that class proceedings are not exempt from the obligation to secure the most expeditious determination of the proceeding on its merits, or the consequences of failing to meet that obligation; and,

(3) that assuring that class proceedings meet that obligation is both a duty of the judiciary and a means to achieve the overarching goals of the CPA.[41]

The Court of Appeal dismissed the plaintiff’s appeal and upheld the motion judge’s dismissal of the 21-year-old certified class action.[42]

KEY TAKEAWAYS

This decision marks a turning point in the law and brings some much-welcomed clarity.

The first key takeaway is that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay.[43] In other words, delay alone constitutes prejudice. It is in this way that the Court of Appeal updated the Langenecker test.

The second key takeaway is that when it comes to dismissal for delay, class actions are not special and do not benefit from special treatment or exemptions from the consequences of inordinate delay. Certified class actions can be dismissed for delay in the same manner as an individual action.[44]

The third key takeaway is that although 21-year delay in Barbiero ONCA was exceptionally long, the Court was clear that the legal principles governing dismissal for delay motions in Ontario apply to less lengthy delays as well, and that a five-year delay may be sufficiently inordinate to justify a dismissal for delay order. This is a welcome development for defendants in stalled class action cases.

Finally, this decision marks an express culture shift in the court’s tolerance for delay in class actions. With this decision, we expect that class action defendants in Ontario will increasingly move to have stalled class actions – both proposed class actions and certified class actions – dismissed for delay. We also expect that class action plaintiffs will move their cases forward more promptly to avoid their class action becoming the target of a dismissal for delay motion. This is a very positive development for both sides of the bar in our practice area.

[1] 2024 ONCA 904 [Barbiero ONCA].

[2] Barbiero ONCA at para 1; Barbiero v Pollack, 2024 ONSC 1548 at paras 2-3 [Barbiero ONSC].

[3] Barbiero ONCA at para 2.

[4] Barbiero ONCA at para 3.

[5] Barbiero ONCA at paras 3-4.

[6] SO 1992, c 6 [CPA].

[7] RRO 1990, Reg 194 [Rules].

[8] Barbiero ONSC at paras 1, 6.

[9] Barbiero ONSC at paras 5-6, 72-145, citing Langenecker v Sauvé, 2011 ONCA 803 [Langenecker].

[10] Barbiero ONSC at para 5, citing Langenecker.

[11] Barbiero ONSC at para 6, 86, 94, 98, 127, 145.

[12] Barbiero ONSC at para 7.