Kalair v. Naimark: "Final and Complete" Under Section 29.1 of the CPA

Overview

Subsection 29.1(1)(a) of Ontario's Class Proceedings Act, 1992[1] (CPA) gives courts a simple directive: dismiss a class proceeding for delay unless the representative plaintiff files a "final and complete" certification motion record by the first anniversary of the day on which the proceeding was commenced (or has otherwise taken one of the steps contemplated in section 29.1). The Law Commission of Ontario, in its Final Report on Class Actions from July 2019, envisioned that the one-year deadline would lead counsel to produce leaner motion materials, foster greater cooperation between counsel to meet deadlines, result in more efficient hearings, and dispose of dormant actions and claims brought by lawyers who lack the resources or intention to prosecute them properly.[2] Justice Morgan's decision in Kalair v. Naimark[3] provides a clarifying example of how section 29.1 operates in practice.[4]

The Motion Record at Issue

The proposed class action was commenced by notice of action on June 21, 2024. On June 6, 2025, two weeks before the one-year anniversary, plaintiff's counsel served the certification motion record. At this time, there was no written certification timetable in place. However, due to difficulties uploading the certification record to the Case Center platform, the record was not filed until June 24, 2025, three days after the deadline.[5] Notably, the certification record did not contain a litigation plan.[6]

The defendants brought a motion to dismiss the matter for delay, arguing that the certification record lacked a litigation plan and therefore was not "final and complete" as contemplated by subsection 29.1(1)(a) of the CPA.[7] At the same time, the plaintiff brought a motion to remove himself as the proposed representative plaintiff, substitute two new proposed representative plaintiffs, and amend the statement of claim accordingly.[8]

Prior to the motion, plaintiff's counsel attempted to remedy the certification record deficiency by serving a responding factum with a proposed litigation plan appended as a schedule.[9]

The question before Justice Morgan was - absent a litigation plan, was the plaintiff's certification record "final and complete" as required by subsection 29.1(1)(a) of the CPA?

No Judicial Wiggle Room

Justice Morgan dismissed the proposed class proceeding for delay. He began his analysis by considering the Court of Appeal for Ontario's holding in Tataryn v. Diamond & Diamond Lawyers LLP,[10] which found that "there is no judicial discretion engaged in the one-year time parameter" and that the section 29.1 requirements demand strict application.[11]

Section 5(1)(e)(ii) of the CPA requires plaintiffs to produce a plan that sets out a workable method of advancing the proceeding on behalf of the class and notifying class members of the proceeding. Justice Morgan found that a litigation plan is "an indispensable requirement" for any certification motion record, noting that while a deficient litigation plan can be rectified, the absence of a litigation plan altogether fails to meet the basic requirements of the CPA.[12] The deficiency could not be fixed by appending a plan at the back of a factum after the deadline, as the factum cannot become an "after-the-fact vehicle by which to 'cooper up' a deficient motion record".[13] 

A Meaningful Litigation Plan is Required

Justice Morgan also held that, even if he accepted that the litigation plan attached to the plaintiff's factum properly formed part of the certification record, he would have rejected the plaintiff’s litigation plan as a matter of substance. As confirmed by the Court of Appeal in Carcillo v. Ontario Major Junior Hockey League, a litigation plan that is unworkable or that contains little more than boilerplate language does not satisfy the statutory requirement.[14]

A litigation plan, though typically lawyer-drafted, must reflect the plans of the representative plaintiff and form part of his or her evidence. As the Alberta Court of King's Bench noted in Sullivan v. Golden Intercapital, it is important that the plan belongs to the representative plaintiff, "otherwise that person cannot be anything more than an empty vessel controlled by the litigation lawyer."[15]

In Kalair, the cross-examinations of the two proposed substitute representative plaintiffs revealed that they had little, if any, knowledge of the responsibilities of a representative plaintiff, including the role of a litigation plan. When asked about the responsibilities of a representative plaintiff, one answered only: "seek counsel?".[16] The other, when asked about a representative plaintiff's obligation to produce a plan for notifying class members, responded: "…that’s why I hire a lawyer to guide me, to show me how to go about doing this matter…I put my faith in him."[17]

Justice Morgan found that these exchanges, among others, revealed that plaintiff’s counsel was instructing his clients rather than the other way around. This left the impression that counsel would be conducting the litigation on his own, without any real instructing client.[18]

The proposed amended statement of claim reinforced this problem. It retained extensive detail about the original plaintiff's relationship with the defendants, even though he was proposing to withdraw from the case entirely. The two proposed substitute representative plaintiffs hardly featured in the proposed amended pleading. Justice Morgan observed that the amended statement of claim was "as non-informative about the two named Plaintiffs as one could imagine". Justice Morgan concluded that the two substitute representative plaintiffs were "almost entirely disengaged from the claim that they are supposedly steering."[19]

Justice Morgan dismissed the action for delay under section 29.1, summarizing his decision as follows: "The Plaintiff's action cannot survive without a representative Plaintiff, they did not file a final and complete motion record in accordance with section 29.1 of the CPA, and they are far out of time under section 29.1 to be given yet more time to find a suitable representative Plaintiff or to supplement their certification record with a litigation plan."[20]

Key Takeaways

This decision provides clarity on the meaning of "final and complete" under subsection 29.1(1)(a) of the CPA. A motion record must contain a litigation plan, the plan must belong to the representative plaintiff (not counsel), and the plan must respond to the specific issues in the action (beyond boilerplate language) in order to be "final and complete".

This decision also highlights the ways the plaintiff could have avoided the one-year deadline without a “final and complete” certification record. The plaintiff could have sought to establish an agreed-upon timetable for service of the certification record, or asked the Court to establish a timetable, pursuant to subsections (b) and (c).

Questions remain, including whether "final" means that, once a record has been filed, the plaintiff is stuck with that evidence after the deadline. This question awaits further judicial treatment.

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