S. 29.1(1) of Ontario’s Class Proceedings Act: When Can a Court Dismiss a Class Action for Delay?

April 16, 2025

By Sebastian di Domenico

In Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5, the Ontario Court of Appeal addressed the issue of how to interpret s. 29.1(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”) which came into force on October 1, 2020. The particular section addresses when a class action shall be dismissed for delay. Before this case, there was little jurisprudence on its interpretation.

The appellants, William Tataryn and Daya Nand Rajan, were representative plaintiffs in a class proceeding commenced in 2018 against the respondent, Diamond & Diamond Lawyers LLP. The appellants made various allegations, including that the respondent had breached its fiduciary duties regarding the respondent’s client referral practices and contingency fee agreements, and had breached the provisions of the Solicitors Act, R.S.O. 1990, c. S.15, and the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

The appellants commenced the class action in May 2018. On November 1, 2023, the motion judge dismissed their action for delay, but they appealed.

In dismissing the action, the motion judge had relied on s. 29.1(1) of the CPA. That section provides as follows:

The court shall, on motion, dismiss for delay a proceeding commenced under section 2 unless, by the first anniversary of the day on which the proceeding was commenced,

(a) the representative plaintiff has filed a final and complete motion record in the motion for certification;

(b) the parties have agreed in writing to a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding, and have filed the timetable with the court;

(c) the court has established a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding; or

(d) any other steps, occurrences or circumstances specified by the regulations have taken place.

Statutory Interpretation

The case largely depended on the exercise of statutory interpretation. Accordingly, the Court provided a useful reminder of the key cases, which remain applicable in the context of class actions:

[25]       As is oft stated, the words of an Act are to be “read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at p. 41.

[26]       There is a presumption of statutory interpretation that the provisions of a statute are meant to work together and form an internally consistent framework: Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 28. When analyzing the scheme of the statute, the court seeks to determine how the provisions or parts of the statute work together to give effect to a plausible and coherent plan. It then considers how the provision to be interpreted can be understood in terms of that plan: Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis, 2022), at § 13.02[4].

[27]       Where applicable, a statutory provision is presumed to be coherent with related statutes: Point-Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015, at p. 1054. When statutes deal with the same subject, it is presumed that their language is consistent throughout. Identical phrases and expressions are presumed to have the same meaning: see e.g. Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448, 6 B.C.L.R. (6th) 271, at paras. 28-29; Sullivan, at § 13.04[4]. In addition, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, expressly apply to proceedings under the CPA. Accordingly, those Rules, including their definition of “timetable”, should be considered when interpreting the CPA.

[28]       Statements made about a statute in the legislature, especially by the Minister introducing it, may assist in ascertaining legislative purpose: see e.g. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, [2017] 1 S.C.R. 93, at para. 34; Sullivan, at § 9.03[3]. The reports of Law Reform Commissions and similar studies can provide insight into the mischief that the legislation is designed to address: see e.g. Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at paras. 11, 14 and 23; Sullivan, at § 9.03[3].

[29]       Legislative purpose may also be inferred by tracing legislative history. Changes in statutory language may be the product of a decision by the legislature to reorder the prior arrangements of legal rights and obligations: see e.g. Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at para. 10; Sullivan, at § 9.03[8]. To that end it is helpful to review the provenance of s. 29.1.

The Applicable Test

After considering the above, the Court made it clear that the interpretation of s. 29.1(1) of the Ontario CPA is not a mechanical exercise, but a contextual one. Given the circumstances, the Court noted that the motion judge had to determine if a timetable for the steps required to advance the proceeding has been established. In terms of the timetable, the Court wrote:

[50]       The CPA does not define timetable or “steps required to advance the proceeding”. On the face of s. 29.1(1), three things are required:

i. a timetable;

ii. the timetable must provide either for the service of the representative plaintiff’s motion record in the motion for certification, or for the completion of “one or more other steps”; and

iii. the “one or more other steps” are required to advance the proceeding. As the steps are “other steps”, this means steps other than the service of the representative plaintiff’s motion record in the motion for certification.

[51]       Typically, ascertaining whether a timetable has been established will be a straightforward exercise. As for the remaining requirements, as mentioned, the CPA provides at s. 35 that the rules of court apply to proceedings under the Act and reference may be had to the Rules of Civil Procedure. Rule 1.03 defines timetable as meaning “a schedule for the completion of one or more steps required to advance the proceeding (including delivery of affidavits of documents, examinations under oath, where available, or motions), established by order of the court or by written agreement of the parties that is not contrary to an order”. That definition encompasses a variety of initiatives that could constitute a step. Notably, each of the examples represents a step that is considered as required to advance the proceeding.

[52]       Not any step would qualify to meet the s. 29.1(1) requirement. On a case-by-case basis, the case management judge[6] would have to consider the totality of the proceeding and whether the completion of the step that was timetabled was required to advance the proceeding.

The Positions of the Parties

The appellants had five grounds of appeal. They argued that the motion judge erred in:

  1. concluding that the appellants had failed to comply with s. 29.1(1);
  2. finding no waiver of s. 29.1(1) by the respondent;
  3. declining to make a Phoenix order;
  4. failing to consider the courts’ inherent jurisdiction over the accounts of lawyers and the absence of any time bar in the Solicitors Act; and
  5. dismissing the action of the Rajan appellant who had been added as a party on January 11, 2023.

The respondents argued that compliance with s.29.1(1) was not onerous because a representative plaintiff only needs to file the certification motion record within the one-year deadline and that the appellants had failed to comply with s.29.1(1).

Disposition

The Court noted that there was no dispute that the appellants had not complied with (a), (b), or (d) of s. 29.1(1). Thus, the Court turned to s.29.1(1)(c) of the Ontario CPA.

The Court held that, in this case, there was no timetable to meet the requirements under s.29.1(1)(c). The facts supported this finding:

  • The proceeding was commenced by notice of application on May 17, 2018.
  • On March 20, 2019, the representative plaintiff amended the notice of application and then amended it again on June 6, 2019.
  • On May 8, 2020, the representative plaintiff consented to an order that the application be converted to an action.
  • On June 22, 2020, he delivered a statement of claim mirroring the notice of application but adding new claims.
  • From May 17, 2018, until the one-year time frame expired on October 1, 2021, the appellant delivered three different notices of application and four different statements of claim.

In the end, there was no error in the motion judge’s conclusion, so the Ontario Court of Appeal dismissed the appeal.

Takeaways

There are three important takeaways from this case. First, in terms of s. 29.1(1) of the Ontario CPA, the courts will be stringent when examining the timeline associated with the first step of the class action, as there is no judicial discretion with respect to the one-year deadline. However, the Courts will take a contextual approach to assessing whether a timetable for completion was established.

Second, the case underscores the detrimental effect of delays in the class actions context. As the Court highlighted, the legislature had enacted s. 29.1(1) in order to address the delay in class actions. This was evident in the Attorney General’s comments, which were referred to by the Court at para. 34, and are as follows: “there are also significant financial and reputational risks for Ontario businesses.”

Lastly, this case provides a useful reminder of the leading cases for statutory interpretation, which play a crucial role when addressing new statutes.