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In Bourque v Insight Productions, Justice Belobaba applied section 29.1 of the amended Class Proceedings Act, 1992 (“CPA”), dismissing a putative class action for delay.

Section 29.1 provides that, on a motion, the court must dismiss a putative class proceeding for delay unless, by the first anniversary of the day on which the proceeding was commenced, certain criteria are met, including:

  • the representative plaintiff has filed a final and complete motion record in the motion for certification; or
  • 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; or 
  • 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.

The point of the provision is to get proposed class actions moving so that they do not get launched and then sit without being advanced. Instead, certain steps have to be performed within a year of starting a lawsuit, or the plaintiff gets her claim dismissed. Some defence counsel will undoubtedly take the position that the provision is also intended to provide finality to defendants—with respect, that interpretation misses the mark.

But first, the facts. In Bourque, the plaintiff sued the defendant group of television production companies alleging employee misclassification. Although the action was commenced on February 21, 2020, the transition provisions of the CPA provided that it was deemed to have been commenced on October 1, 2020, for the purposes of the one-year mandatory dismissal date. Thus, the one-year mandatory dismissal date for the action was October 1, 2021.

On the defendants’ motion, Justice Belobaba found that, as matter of fact, none of the section 29.1 requirements had been satisfied by the plaintiff by October 1, 2021. The plaintiff served her motion record for certification on October 6, 2021—six days too late—and no timetable had been agreed to by the parties or established by the court. Notably, even section 12 of the CPA, which provides wide-ranging case management powers to the court to ensure a class proceeding’s “fair and expeditious determination”, was of no assistance to the plaintiff given the mandatory nature of section 29.1.

Accordingly, His Honour granted the defendants’ motion to dismiss. However, Justice Belobaba noted that while dismissal of the action was an inconvenience, “in the vast majority of cases, the dismissed proceeding can be refiled against the same defendants with just a change in the proposed representative plaintiff.”  This reasoning makes sense because an existential threat to a proposed class action in the form of a with-prejudice dismissal would not be appropriate at such an early stage. Putative class members might have real claims against a defendant who has done something illegal, and certification records take a long time to compile for myriad reasons, many unpredictable. 

The ruling in Bourque can be distilled down to: section 29.1 means exactly what it says.  But that cuts both ways.  While actions will be dismissed on a technical and fact-driven analysis, they can be relaunched with a different plaintiff steering the litigation. Contrary to the “defence counsel argument” set out above, section 29.1 was not intended to provide finality to defendants, a fundamentally different imperative than compelling a plaintiff to advance their proposed class proceeding. Rather, the point is to force plaintiffs to file their certification records in a timely manner—and if they can’t, as Justice Belobaba writes, “perhaps the putative class deserves another representative plaintiff who can.”

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