In October 2020, a number of changes to Ontario’s Class Proceedings Act came into effect. The changes had originally been proposed under Bill 161: Smarter and Stronger Justice Act, 2020, which received royal assent in July 2020. According to Attorney General Doug Downey, the stated goal of Bill 161 was to modernize and simplify the province’s justice system. The Bill identified changes to several statutes, including amendments to the Class Proceedings Act aimed to simplify and speed up the class action process.

While many of the changes were met with approval from Ontario’s legal community, some expressed the concern that Ontario appeared to be adopting American principles regarding certification. Critics pointed out the possible impact these changes could have on vulnerable individuals’ ability to bring class proceedings.

Despite the concerns, the amendments were passed, and the new Class Proceedings Act came into effect as of October 1, 2020.

Changes to the Class Proceedings Act Under Bill 161

Some of the core changes to the Class Proceedings Act include:

1. Higher Onus for Certification: Certification is the preliminary process in which a court approves an action to move forward as a class proceeding. Previously, the class was required to demonstrate that a class proceeding was preferable for determining the issues involved in the action. The amended Class Proceedings Act now requires a class to prove that a class action is the “superior” means for deciding the issues involved (for example, as opposed to an administrative or regulatory hearing). Critics raised the concern that this higher onus would result in fewer class actions being certified.
2. Expanded Appeals of Certification Decisions: Under the previous iterations of the Class Proceedings Act, only plaintiffs could appeal a certification decision. The amended Act gives both plaintiffs and defendants the right to appeal.
3. Mandatory Dismissal for Delay: Class proceedings can take years to work through the court system, causing undue prejudice to a defendant. The amended Class Proceedings Act sets out requirements for mandatory dismissal for delay if certain steps have not been taken within one year after the start of the proceeding.

Dismissal for Delay in Class Proceedings

Section 29.1 of the Class Proceedings Act requires that a court shall, on motion, order the dismissal of a class proceeding unless one of the following steps has been taken within the first year after the proceeding commenced;

• The representative plaintiff filed a final and complete motion record;
• The parties agreed in writing to a timetable for service of the representative plaintiff’s motion record or for completion of one or more other steps required to advance the proceeding, and have filed the timetable with the court;
• The court-mandated a timetable for service of the representative plaintiff’s motion record or for completion of one or more other steps required to advance the proceeding; or
• Any other steps, occurrences or circumstances specified by the regulations have taken place.

While all of the changes to the Class Proceedings Act were to apply only to actions commenced as of October 1, 2020 or later, an exception was made for s. 29.1. For the purposes of mandatory dismissal for delay, any class proceeding commenced prior to October 1, 2020, would be deemed to have been commenced on that date.

Section 29.1 Addresses “Glacial Pace” of Class Proceedings but Lacks Finality

While the changes have been in effect for over a year, Ontario has just seen its first class proceeding dismissed for delay under s. 29.1. In the decision, Bourque v. Insight Productions, the Ontario Superior Court of Justice noted that section 29.1 is intended to speed up the class proceedings process, which ordinarily moves at a “glacial speed”. The defendants brought a motion for dismissal for delay as the representative plaintiff failed to meet any of the requirements of section 29.1 by the deadline of October 1, 2021. The motions judge agreed and dismissed the matter for delay.

The judgement has raised the question of whether s. 29.1 will help eliminate delays or just kick the can down the road, leaving defendants just as vulnerable as they were under the original Class Proceedings Act. The motions judge noted that the mandatory dismissal provision should be applied by class actions lawyers as intended, as compliance under section 29.1 is “not particularly onerous” for a plaintiff. The court further acknowledged that while a dismissal for delay may be “inconvenient”, many dismissed class proceedings can be refiled with a change in the representative plaintiff.

For Exceptional Representation in Class Action Proceedings, Contact the Skilled Litigators at Milosevic & Associates

The Toronto litigators at Milosevic & Associates will guide you through the class action process and skillfully represent you before all levels of court, including the Supreme Court of Canada. One of our founding partners, David Milosevic, completed a Masters of Law with a focus on class action litigation, and our firm has defended some of Canada’s largest

companies in complex class action proceedings. Contact us to learn how we can provide you with proactive risk management and legal guidance. We are the lawyers other lawyers turn to for complex litigation matters. Call us at 416-916-1387 or contact us online for a consultation.