Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241216 DOCKET: COA-24-CV-0371

Brown, Huscroft and Miller JJ.A.

BETWEEN

Anna Barbiero Plaintiff (Appellant)

and

Dr. Sheldon Victor Pollack Defendant (Respondent)

Proceeding under the Class Proceedings Act, 1992

Counsel: Peter L. Roy and J. Adam Dewar, for the appellant Dena Varah and Derek Hooper, for the respondent

Heard: December 9, 2024

On appeal from the order of Justice Benjamin T. Glustein of the Superior Court of Justice dated March 14, 2024, with reasons reported at 2024 ONSC 1548.

Brown J.A.:

Endorsement

[1] The appellant, Anna Barbiero, seeks to set aside the dismissal of the 21‑year old certified class proceeding for which she is the representative plaintiff. The action sought damages against the defendant physician, Dr. Sheldon Victor Pollack, for unlawfully injecting Liquid Injectable Silicone or Injectable Grade Liquid Silicone (“IGLS”) into patients’ lips and facial contours.

[2] Ms. Barbiero commenced this action in February 2003. Later that year, in December 2003, it was certified on consent as a class proceeding.

[3] Some discoveries took place in 2004 and 2005. Health Canada seized a sample of the IGLS in the possession of Dr. Pollack, which resulted in a March 2005 order by the class proceeding case management judge approving a protocol for the sample’s testing. The parties held an unsuccessful one-day mediation in late 2012. In 2019 Ms. Barbiero informed the respondent that she wished to arrange for the testing of the IGLS sample previously seized by Health Canada and to set the matter down for trial. By 2022 the matter still had not been set down for trial, notwithstanding the passage of almost 20 years.

[4] In September 2022, Dr. Pollack moved to dismiss the proceeding for delay. The motion judge granted the order, applying s. 35 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”) and r. 24.01 of the Rules of Civil Procedure [1] to dismiss the action. Ms. Barbiero appeals.

[5] In his reasons, the motion judge described and analyzed the litigation history of this proceeding in considerable detail: 2024 ONSC 1548, at paras. 14 to 67. There is no need to repeat it.

The obligation of an initiating party to move a proceeding to its final disposition

[6] I begin the analysis by recalling that this court repeatedly observes that the party-prosecution character of our current civil court adjudication system imposes on the party who initiates a claim the burden of moving a proceeding to its final disposition on the merits. As a result, the consequences of any dilatory regard for the pace of litigation falls on the initiating litigant, absent resistance from a defendant to proceed to a final disposition on the merits (of which there is no evidence on the facts of this case): 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at paras. 28 and 29.

[7] Those principles and consequences apply to all civil proceedings, including actions that are certified as class proceedings: CPA, s. 35.

The legal principles applied by the motion judge.

[8] On the r. 24.01 motion brought by Dr. Pollack, the motion judge applied the principles set out in Langenecker v. Sauvé, 2011 ONCA 803, 286 O.A.C. 268, that an action will be dismissed for delay where the delay (i) is inordinate, (ii) inexcusable, and (iii) results in a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay, whether through an unrebutted presumption of prejudice or by evidence of actual prejudice to the defendant’s ability to have the case adjudicated on its merits.

[9] Ms. Barbiero does not contend the motion judge erred in identifying those as the governing principles; her complaint is that the motion judge misapplied them. Yet, I am troubled that a plaintiff could seek to find refuge in Langenecker to defend her failure to set down an action for trial more than 20 years after its commencement. In my view, that signals the Langenecker approach to delay is out of step with the contemporary needs of the Ontario civil court system.

[10] The principles summarized in Langenecker were drawn from a 1968 decision of the Court of Appeal of England and Wales, Allen v. Sir Alfred McAlpine & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.), 556, which Langenecker quoted at para. 5. Much has changed in the civil court systems of both Ontario and England since 1968. Significantly, Langenecker pre‑dated the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[11] Hryniak singled out for criticism an unhealthy characteristic of the contemporary Ontario civil justice system: its indifference to delay. In calling for a “culture shift” in the civil justice system, the court in Hryniak stated at para. 25:

Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice.

[12] Effecting a culture shift requires not only changing the entrenched culture of indifference to delay manifested by far too many litigants and their counsel, but also identifying and changing those judge-created rules or interpretative glosses that do not promote – and in some cases impede – the “prompt judicial resolution of legal disputes”.

[13] Under the Langenecker approach, delay or the passage of time on its own cannot constitute harm or prejudice sufficient to support the dismissal of an action. Langenecker merely treats the existence of delay as giving rise to a rebuttable presumption of prejudice – that is to say, the lingering of an action in our courts for over two decades may or may not result in a harm or prejudice. According to Langenecker, it all depends.

[14] I strongly question whether Ontario’s civil courts can achieve the culture shift demanded by the Supreme Court of Canada in Hryniak if they continue to cling to Langenecker’s lax attitude toward delay. The late Willard Z. Estey, former judge of the Supreme Court of Canada, succinctly described the social harm caused by such an attitude:

Disputes, unlike wine, do not improve by aging. Many things happen to cause a cause and to parties in a dispute by the simple passage of time, and almost none of them are good. Delay in settlement or disposal of conflicting claims is … a primary enemy of justice and peace in the community.” [2]

[15] As well, Langenecker’s tolerant attitude toward delay is out of step with a key element of the general principle for civil litigation set out in r. 1.04(1) of the Rules of Civil Procedure, namely to secure the “most expeditious … determination of every civil proceeding on its merits”. A litigation culture based on Langenecker focuses more on justifying delay than on achieving the most expeditious determination of civil proceedings. To the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, it should not be followed.

[16] One must reflect seriously on the health of a litigation culture in which a party, such as the appellant, when brought before the courts, is not prepared to recognize that a delay of over 20 years in moving an action to its final adjudication on the merits is “inordinate” delay but is merely a situation where the “action has moved slowly”, as put in para. 9 of her factum and maintained at the hearing of the appeal.

First ground of appeal: The motion judge erred in finding the 21-year delay inordinate and inexcusable.

[17] Ms. Barbiero submits the motion judge erred by finding that the delay in this action was inordinate and inexcusable, or unexplained. I do not agree.

The length of the delay

[18] The motion judge conducted a detailed examination of the litigation history of this action since its commencement: at paras. 14 to 67.

[19] The motion judge’s finding that Ms. Barbiero’s delay of 21 years was inordinate is irreproachable; the contention that it was not is incomprehensible.

[20] To be “inordinate” a delay must be unusually large or excessive. In the context of applying r. 24.01, that assumes the existence of a benchmark that sets out the ordinary or normal amount of time that it should take a civil proceeding to move from its initiation to its setting down for trial.

[21] Such a benchmark exists in the Rules of Civil Procedure.

[22] Rule 48.14(1)1 provides that the registrar shall dismiss an action for delay where it has not been set down for trial or terminated by any means by the fifth anniversary of the commencement of the action. Consequently, if an action has not been set down for trial within those five years, the action crosses the line and begins to move into the realm of “inordinate” delay. An action that has not been set down for trial 21 years after it was started has strayed deep into the dark wood of “inordinate” delay.

Whether the delay was inexcusable

[23] As the motion judge noted, there was no affidavit from the representative plaintiff that explained why she had allowed the action to linger for two decades. Instead, Ms. Barbiero relied on an affidavit from one of her counsel filed in her contemporaneous motion that sought to vary the 2004 ISGL sample testing order. [3] That affidavit from counsel did not explain the reasons for the delay in setting this proceeding down for trial.

[24] The motion judge recognized that appellant’s counsel took some steps during the period 2003 until 2022 to move the action along to trial. However, the motion judge held there was no evidence of any steps taken by Ms. Barbiero to advance the action during the six-and-a-half-year period from May 2006 until December 2012, when the mediation was held, or of any substantive steps taken during the subsequent seven-year period from the December 2012 mediation until December 2019.

[25] Ms. Barbiero submits the motion judge misapprehended the evidence, which in fact showed that she was attempting to move the action along following the 2012 one-day mediation by engaging in a settlement process that did not run its course until 2019 or 2020. Therefore, according to Ms. Barbiero, the motion judge erred in finding that there was “no evidence of any substantive steps taken by Barbiero during this time period”, namely December 2012 until December 2019: at para. 46.

[26] Ms. Barbiero points to a series of letters sent by Dr. Pollack’s counsel following the mediation as evidence of her efforts to move the action along:

(i) A May 28, 2014 letter from Dr. Pollack’s counsel observing that the mediation “was initiated and ultimately adjourned in December 2012” and requesting “the further information your firm agreed to provide at the mediation”, which included any additional patients who intended to participate in the action and “which class members, if any, are alleged to have suffered actual harm”;

(ii) A December 9, 2014 letter from respondent’s counsel stating that “[w]e have not yet heard from you regarding how many class members intend to participate in this action and which (if any) allege to have suffered harm or loss”;

(iii) A January 21, 2016 letter from Dr. Pollack’s counsel following up on the outstanding information request and which concluded by stating: “Given that it has now been almost a year since we last heard from you, and several years since the attempted mediation where the Plaintiffs committed to providing this information about class size and damages, please also advise whether the Plaintiffs still intend to pursue this action”;

(iv) A further follow-up letter from respondent’s counsel, dated June 22, 2016, again requesting the information and again asking whether the plaintiffs intended to pursue the action;

(v) A June 24, 2016 email from Ms. Barbiero’s counsel acknowledging receipt of the June 22 letter and advising that “a more detailed response follows next week regarding the Plaintiff’s proposed method of moving this action forward”;

(vi) No such detailed response was sent by appellant’s counsel, which prompted an August 12, 2016 letter from Dr. Pollack’s counsel: “I still have not heard from you. As you know, this matter has been outstanding for quite some time. Kindly provide us with the above noted proposed method of moving this action forward at your earliest convenience”;

(vii) An October 11, 2016 email from Dr. Pollack’s counsel again requesting the information Ms. Barbiero had committed at the mediation to provide;

(viii) A March 13, 2017 letter from respondent’s counsel noted: “We still have not received any substantive response from you. Accordingly, please provide us with your proposed method of moving this action forward at your earliest convenience”;

(ix) On October 12, 2017, Dr. Pollack’s counsel wrote again, repeating their requests;

(x) A similar request by respondent’s counsel dated January 30, 2018 adding: “We are still waiting for you to provide us with the information that you agreed to provide to us over 4-years ago in December, 201[2]. The delay in providing this information to us has been prolonged and inexplicable. This is nothing to say for the lengthy delays in advance of the mediation in 201[2]”;

(xi) Yet another similar letter by Dr. Pollack’s counsel was sent to Ms. Barbiero’s counsel on February 11, 2019;

(xii) Finally, on December 20, 2019, Ms. Barbiero’s counsel responded, stating: “Prior to setting this matter down for trial, we would like to arrange to have the sample of the silicone tested as per the previous order of Cullity J.”

[27] This series of letters, to which Ms. Barbiero’s counsel did not respond in any substantive way, not only belies the appellant’s present contention that a process of post-mediation settlement negotiation took place during the period December 2012 to December 2019, but also fully supports the motion judge’s finding that there was “no evidence of any substantive steps taken by Barbiero” during that period of time. It is apparent that during that period of time Ms. Barbiero’s counsel, for whatever reason, simply ignored the lawsuit for the better part of seven years.

[28] Ms. Barbiero attempts to lessen the length of her delay by arguing, as she did below, that the starting point for assessing delay should be the December 2012 mediation, not the commencement of the proceeding in 2003. The motion judge quite properly rejected that submission and held that for the purposes of a r. 24.01 delay analysis time starts to run from the initiation of the proceeding: at paras. 74 to 75.

[29] Accordingly, I see no palpable and overriding error in the motion judge’s findings that the Ms. Barbiero’s delay was inordinate and inexcusable.

Second ground of appeal: The motion judge erred in finding prejudice.

[30] Ms. Barbiero next submits that the motion judge erred in his prejudice analysis. She repeats the main arguments made below, including the availability of the defendant’s discovery transcripts and the irrelevance to the case of the inability to test the sample of IGLS seized from Dr. Pollack’s office but later lost by Health Canada.

[31] I am not persuaded that Ms. Barbiero has demonstrated the motion judge erred in his understanding of the evidence or committed any palpable and overriding error in weighing the various considerations at play in examining the issue of prejudice. The motion judge:

(i) considered the existence of documentary evidence and the transcripts of the 2004 discovery of the defendant (paras. 114-115);

(ii) assessed the effect of the loss of the allegedly adulterated IGLS sample in the context of the issues in dispute in the proceeding (paras. 116-120 and 128-145); [4] and

(iii) noted the lack of evidence from Ms. Barbiero about the availability, after 21 years, of documents or testimony from other class members (paras. 121-125).

[32] Consequently, I see no basis upon which to interfere with the conclusion he reached regarding prejudice.

Third ground of appeal: The motion judge erred in dismissing the action in light of the ability of class members to start a new action.

[33] Finally, the appellant contends the motion judge erred in exercising his discretion to dismiss this class proceeding. She makes three distinct submissions in support of this ground of appeal.

[34] First, Ms. Barbiero argues the motion judge erred in principle by rejecting her argument that concerns about the pace of the action “should have been dealt with through the robust class action case management process.”

[35] With respect, this is an ironic argument. At a time when many are calling for the greater availability of single-judge case management in the Ontario civil justice system, since its inception this action has been the beneficiary of single‑judge case management through the Toronto Region Class Actions Team. The record is silent as to why this representative plaintiff, and her counsel, failed to take advantage of such preferential access to judicial resources over the course of almost two decades.

[36] Second, Ms. Barbiero submits that it would be inefficient to dismiss the present action when other class members could initiate a new action given the suspension of the limitation period by operation of s. 28 of the CPA [5].

[37] In exercising his discretion, the motion judge dealt with that argument in his reasons at paras. 160-172. He identified the potential obstacles facing any new proposed representative plaintiff who sought to certify a new claim. I see no reversible error in his analysis. Moreover, the record does not contain an affidavit from any class member indicating a willingness to initiate a new action in the event of the dismissal of the present action. Accordingly, this submission by the appellant is based on a theoretical litigation possibility, not a real litigation prospect.

[38] Finally, Ms. Barbiero contends that dismissing this action would be contrary to the goals of the Class Proceedings Act of achieving access to justice, judicial economy, and behaviour modification. I disagree. The Rules of Civil Procedure apply to class proceedings: CPA, s. 35. One element of the general principle that r. 1.04(1) identifies as applying to all civil litigation is the obligation to secure the “most expeditious” determination of the proceeding on its merits. Class proceedings are not exempt from the operation of that principle nor from the consequences of unexplained inordinate delay. Assuring that class proceedings comply with that principle is a duty of the judiciary and one means to achieve the overarching goals of the Class Proceedings Act.

[39] Accordingly, I see no merit in this ground of appeal.

Disposition

[40] For the reasons set out above, I would dismiss the appeal.

[41] Dr. Pollack is entitled to his costs of the appeal. Counsel advise that they should be able to agree on the amount. If no such agreement is reached by January 10, 2025, counsel shall file with this court, no later than 5 p.m. on January 15, 2025, written cost submissions of no more than five pages in length.

Released: December 16, 2024 “D.B.” “David Brown J.A.” “I agree. Grant Huscroft J.A.” “I agree. B.W. Miller J.A.”

Footnotes

[1] Rule 24.01(1) of the Rules of Civil Procedure provides, in part, that “[a] defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed … (c) to set the action down for trial within six months after the close of pleadings”.

[2] Ontario Civil Justice Review, First Report (1995), online, Ontario Ministry of the Attorney General, quoted with approval in Louis v. Poitras, 2020 ONSC 5301, 152 O.R. (3d) 760, at para. 48; 2020 ONCA 815, 8 C.C.L.I. (6th) 163, at para. 33.

[3] The affidavit of Sean Grayson focused on the efforts in 2005 and 2006 to secure the sample for testing. It then mentioned the 2012 mediation. At that point, the narrative in the affidavit jumped ahead to 2020, when the appellant’s counsel sought to vary the 2004 testing order.

[4] For example, in her July 27, 2022 notice of motion to vary the 2005 sample testing order, one ground for the motion advanced by Ms. Barbiero was that “[t]he nature of the LIS used by the defendant is a disputed issue in this proceeding.”

[5] Section 28(1) of the CPA states: 28 (1) Any limitation period applicable to a cause of action asserted in a proceeding under this Act is suspended in favour of a class member on the commencement of the proceeding and, subject to subsection (2), resumes running against the class member when, (a) the court refuses to certify the proceeding as a class proceeding; (b) the court makes an order that the cause of action shall not be asserted in the proceeding; (c) the court makes an order that has the effect of excluding the member from the proceeding; (d) the member opts out of the class proceeding; (e) an amendment that has the effect of excluding the member from the class is made to the certification order; (f) a decertification order is made under section 10; (g) the proceeding is dismissed without an adjudication on the merits, including for delay under section 29.1 or otherwise; (h) the proceeding is abandoned or discontinued with the approval of the court; or (i) the proceeding is settled with the approval of the court, unless the settlement provides otherwise.