Timothy H. Leigh-Bell

The defendants moved to dismiss the proposed class proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs did not oppose the dismissal but requested a 60-90 day delay of the effective date to locate new representative plaintiffs for a fresh action.

The court held that s. 29.1 is a mandatory provision and the court lacks discretion to delay the effective date of the dismissal.

The motion to dismiss was granted.

The respondent was injured in a motor vehicle accident and sued for non-pecuniary damages.

The trial judge found the respondent met the statutory impairment threshold but dismissed the action because the respondent did not provide corroborating evidence of his change in function from a witness other than himself, as required by s. 4.3(5) of O. Reg. 461/96.

The Divisional Court allowed the appeal, holding that the regulation does not preclude the injured person from providing the corroborative evidence.

The Court of Appeal agreed, finding that the regulation requires corroboration of the physician's evidence, which can be provided by the injured person's own testimony.