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?