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