COURT OF APPEAL FOR ONTARIO

CITATION: Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5

DATE: 20250102

DOCKET: COA-23-CV-1285

Pepall, Miller and Wilson JJ.A.

BETWEEN

William Tataryn and Daya Nand Rajan

Plaintiffs (Appellants)

and

Diamond & Diamond Lawyers LLP

Defendant (Respondent)

Proceeding under the Class Proceedings Act, 1992

Peter I. Waldmann and Matthew J. Armstrong, for the appellants

Milton A. Davis, Ronald D. Davis and Teodora Obradovic, for the respondent

Heard: September 3, 2024

On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated November 1, 2023, with reasons reported at 2023 ONSC 6165.

Pepall J.A.:

INTRODUCTION

[1] The issue on this appeal is the interpretation to be given to s. 29.1(1) (c) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”) which came into force on October 1, 2020. That section requires a class action plaintiff to complete one of several steps within one year from the day the proceeding was commenced or face dismissal of the proceeding for delay. The appellants, William Tataryn and Daya Nand Rajan, are representative plaintiffs in a class proceeding commenced in 2018 against the respondent, Diamond & Diamond Lawyers LLP.[^1] The appellants, who suffered personal injuries in motor vehicle accidents, allege that, among other things, the respondent breached fiduciary duties regarding the respondent’s client referral practices and contingency fee agreements and also breached the provisions of the Solicitors Act, R.S.O. 1990, c. S.15 and the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A.

[2] The appellants commenced their proceeding in May 2018. On November 1, 2023, the motion judge dismissed their action for delay. The appellants appeal from that order.

[3] In dismissing the action, the motion judge relied on s. 29.1(1) of the CPA. That section states:

The court shall, on motion, dismiss for delay a proceeding commenced under section 2 unless, by the first anniversary of the day on which the proceeding was commenced,

(a) the representative plaintiff has filed a final and complete motion record in the motion for certification;

(b) 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;

(c) 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; or

(d) any other steps, occurrences or circumstances specified by the regulations have taken place.

[4] The legislature introduced this provision in 2020. The operation of the transition provisions meant that for these parties, the one-year time frame expired on October 1, 2021.

[5] There is no dispute that the appellants did not comply with paragraphs (a), (b), or (d) of s. 29.1(1). They can only succeed on this appeal as it relates to s. 29.1(1) if they can show they complied with paragraph (c) and that hence they have not delayed the proceeding beyond the s. 29.1(1) deadline. In this case, it is clear that the court had not established a timetable for service of the certification motion record. Therefore, the key question on this appeal is whether the court had established a timetable “for completion of one or more other steps required to advance the proceeding”.

[6] For the reasons that follow, I would dismiss the appeal.

BACKGROUND FACTS

[7] The motion judge set out an extensive and detailed chronology of the proceedings. I will touch upon highlights of the chronology.

[8] The proceeding commenced with the appellant Tataryn’s notice of application on May 17, 2018. There followed two amendments and a May 8, 2020 consent order converting the application to an action.

[9] On June 22, 2020, the Tataryn appellant delivered a statement of claim. On July 10, 2020, dates were set for the exchange of materials and the hearing of the respondent’s first motion to strike the statement of claim. On April 13, 2021, the motion judge granted the motion with leave to amend. He also ordered a stay against all defendants except the respondent.

[10] On May 13, 2021, the Tataryn appellant delivered a fresh as amended statement of claim which counsel withdrew in the face of complaints of deficiencies by the respondent’s counsel.

[11] On June 7, 2021, the Tataryn appellant delivered another fresh as amended statement of claim.

[12] Following further objections, the Tataryn appellant’s counsel delivered a draft and then issued a new fresh as amended statement of claim on December 15, 2021. More objections ensued and both parties requested a case conference that was scheduled for February 15, 2022 and then rescheduled for April 4, 2022. At that time, the motion judge ordered that the respondent’s motion that the Tataryn appellant comply with the April 13, 2021[^2] order be heard on June 29, 2022 and the Tataryn appellant’s motion for certification be heard on February 13 to 15, 2023. The Tataryn appellant had delivered an amended fresh as amended statement of claim on April 1, 2022 but delivered a new draft on April 29, 2022 which counsel then revised on June 15, 2022.

[13] On June 29, 2022, the motion judge heard the respondent’s compliance motion and also the appellant’s motion to deliver the amended amended fresh as amended statement of claim and to add the appellant, Daya Nand Rajan, as a plaintiff. On January 11, 2023, the motion judge struck portions of the statement of claim and dismissed the remainder of the appellants’ motion. Contrary to the motion judge’s chronology, he granted the appellants leave to add Daya Nand Rajan as a plaintiff and ordered that “the Plaintiff shall have leave to re-draft these paragraphs and revise the Claim in a way that aims at the Defendant alone and not at the individual members of the Defendant.”

[14] On January 20, 2023, the respondent’s counsel advised the appellants’ counsel that they had not complied with s. 29.1(1) of the CPA and proposed to bring a motion to that effect.

[15] On May 1, 2023, the Divisional Court dismissed the appellants’ motion for leave to appeal the motion judge’s January 11, 2023 order.

[16] On September 12, 2023, the motion judge set October 31, 2023 for the respondent’s s. 29.1(1) motion and May 6-8, 2024 for the certification motion.

[17] On November 1, 2023, the motion judge granted the respondent’s s. 29.1(1) motion and dismissed the appellants’ action for delay. There was therefore no need for a hearing of the certification motion.

REASONS OF THE MOTION JUDGE

[18] In granting the s. 29.1(1) motion, the motion judge considered that the language of s. 29.1(1)(a) through (d) was mandatory. He saw nothing in the record that would compel him to deviate from the literal language of s. 29.1(1). He found that none of the delay was the fault of the respondent and he rejected the appellants’ argument that challenges to a faulty pleading or timetabling motions to strike pleadings amounted to “steps” under s. 29.1(1). He reasoned that s. 29.1(1) assumes that the action has already been commenced and then requires a step on the way to certification, “not just a foundational step such as the [appellants] issuing [their] pleading and struggling to salvage it”: at para. 12. He noted that the case commenced in May 2018 and the motion record for certification was served in May 2023. “That means that the first section 29.1(1) step was taken by the [appellants] 5 years since commencement of the case, 3 years since the enactment of section 29.1(1), and 2 years since the deadline has come and gone under that section for making some progress toward certification”: at para. 11.

[19] He described his decision in Lubus v. Wayland Group Corp., 2022 ONSC 4999, stating at para. 13:

Plaintiff’s counsel points out that in Lubus I expressed a willingness to apply section 29.1 flexibly due to the particular circumstances of that case. It was my expressed view, at para. 42, that the section is to be interpreted strictly as that was its purpose, but that it did not impose an absolute “zero tolerance” regime. The plaintiff in Lubus had made considerable efforts to move the matter ahead but was prevented from doing so by the steps taken by the defendants in that case and by the court’s own schedule.

He contrasted Lubus with Bourque v. Insight Productions, 2022 ONSC 174, 82 C.P.C. (8th) 417, St. Louis v. Canadian National Railway Company, 2022 ONSC 2556, 162 O.R. (3d) 474, leave to appeal refused, 2022 ONSC 5106 (Div. Ct.) and LeBlanc et al v. Attorney General of Canada, 2022 ONSC 3257, all of which he interpreted as holding that there was no residual discretion available to a judge if the requirements of s. 29.1(1) were not satisfied. In the case under appeal, he did not see the need to resolve the issue of whether there was any room for interpretation of what constituted the “steps” in s. 29.1(1) as he saw nothing in the record that would compel him to deviate from the literal language of s. 29.1(1).

[20] He also rejected the appellants’ submissions that the respondent had waived its s. 29.1(1) rights. He declined to grant what Perell J. described in D’Haene v. BMW Canada Inc., 2022 ONSC 5973 as a “Phoenix” order providing for leave to start a new action.

[21] The motion judge accordingly dismissed the action.

GROUNDS OF APPEAL

[22] In essence, the appellants advance five grounds of appeal. They submit that the motion judge erred in: (i) concluding that the appellants had failed to comply with s. 29.1(1); (ii) finding no waiver of s. 29.1(1) by the respondent; (iii) declining to make a Phoenix order; (iv) failing to consider the courts’ inherent jurisdiction over the accounts of lawyers and the absence of any time bar in the Solicitors Act; and (v) dismissing the action of the Rajan appellant who had been added as a party on January 11, 2023.

[23] I will consider each of these grounds in turn.

(1) Compliance with s. 29.1(1) of the CPA

[24] The appellants assert that the motion judge erred in concluding that the appellants failed to comply with s. 29.1(1). This first ground of appeal involves statutory interpretation.

(a) Principles of Statutory Interpretation

[25] As is oft stated, the words of an Act are to be “read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at p. 41.

[26] There is a presumption of statutory interpretation that the provisions of a statute are meant to work together and form an internally consistent framework: Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 28. When analyzing the scheme of the statute, the court seeks to determine how the provisions or parts of the statute work together to give effect to a plausible and coherent plan. It then considers how the provision to be interpreted can be understood in terms of that plan: Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis, 2022), at § 13.02[4].

[27] Where applicable, a statutory provision is presumed to be coherent with related statutes: Point-Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (SCC), [1997] 1 S.C.R. 1015, at p. 1054. When statutes deal with the same subject, it is presumed that their language is consistent throughout. Identical phrases and expressions are presumed to have the same meaning: see e.g. Notaries Public of British Columbia v. Law Society of British Columbia, 2017 BCCA 448, 6 B.C.L.R. (6th) 271, at paras. 28-29; Sullivan, at § 13.04[4]. In addition, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, expressly apply to proceedings under the CPA. Accordingly, those Rules, including their definition of “timetable”, should be considered when interpreting the CPA.

[28] Statements made about a statute in the legislature, especially by the Minister introducing it, may assist in ascertaining legislative purpose: see e.g. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6, [2017] 1 S.C.R. 93, at para. 34; Sullivan, at § 9.03[3]. The reports of Law Reform Commissions and similar studies can provide insight into the mischief that the legislation is designed to address: see e.g. Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at paras. 11, 14 and 23; Sullivan, at § 9.03[3].

[29] Legislative purpose may also be inferred by tracing legislative history. Changes in statutory language may be the product of a decision by the legislature to reorder the prior arrangements of legal rights and obligations: see e.g. Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at para. 10; Sullivan, at § 9.03[8]. To that end it is helpful to review the provenance of s. 29.1.

(b) Provenance of s. 29.1

[30] Ontario’s Class Proceedings Act, 1992 was proclaimed in force on January 1, 1993. On July 17, 2019, the Law Commission of Ontario issued its report, “Class Actions: Objectives, Experience and Reforms”, online: <lco-cdo.org> [perma.cc/5V88-9Q7V].

[31] The Commission recommended at pp. 18-19 that the original 90-day timeline for a certification motion to be made, found in s. 2(3) of the former CPA, be extended to one year. It reported:

The Law Commission of Ontario was advised repeatedly that the ninety day deadline has been consistently (and reasonably) ignored because it is unrealistic in contemporary class action litigation. At first glance, the imposition of a longer deadline seems counterintuitive if one is concerned about delay. This reform will only be effective if it is accompanied by considerably less judicial deference to parties seeking an extension to complete their materials.

[32] The Law Commission went on to state, “Inevitably, there will be situations where a one-year timetable is unreasonable. The proposed amendment … allows for longer timetables, but forces the parties to justify any delay to a judge.”

[33] On July 8, 2020, the legislature enacted the Smarter and Stronger Justice Act, 2020, S.O. 2020, c. 11 and introduced s. 29.1 to the CPA.[^3]

[34] In proposing Bill 161 that resulted in the Smarter and Stronger Justice Act, 2020, Attorney General Doug Downey stated in the legislature:

[I]t often does take years for class actions to work their way through the court system. I’m going to speak about the timing of certification motions and the mandatory dismissal for delay. Not only does this use valuable court resources, but there are also significant financial and reputational risks for Ontario businesses. It is expensive and time-consuming for businesses to defend class actions that are dormant, that don’t have merit, or can’t be resolved in a reasonable amount of time. The cost of these lengthy lawsuits impacts shareholders, employees and consumers, and ultimately our economy. We are proposing changes that would allow cases to be dismissed for delay where no meaningful steps have been taken.

See Legislative Assembly of Ontario, Hansard, February 19, 2020 (42nd Leg., 1st Sess.), at p. 0910. Thus the focus of Bill 161, which included s. 29.1, was on actions that were dormant, did not have merit, or that could not be resolved in a reasonable amount of time.

(c) Application of the Section

[35] To avoid dismissal, the representative plaintiff has to have either filed a certification motion record (paragraph (a)) or agreed with the other parties to a timetable (paragraph (b)), or the court has to have established a timetable for the certification motion or for completion of “one or more other steps required to advance the proceeding” (paragraph (c)).

[36] In Martin v. Wright Medical Technology Canada Ltd., 2024 ONCA 1, this court touched on s. 29.1 noting that the old Class Proceedings Act, 1992 applied to cases started before October 1, 2020 and not the amended Act introduced on October 1, 2020 with the exception of the “mandatory dismissal for delay” provisions of s. 29.1. Although dealing with a different issue than that before this panel, Lauwers J.A. noted the call of the Law Commission for a culture shift to address “the consistent concern with almost all stakeholders consulted [about] the enormous expense and slow pace of class actions”: at para. 20.

[37] There is limited jurisprudence on the interpretation of s. 29.1(1).

[38] The Superior Court decision of Bourque adopted a strict interpretation of s. 29.1(1). In Bourque, the plaintiff served her certification motion “six days too late”, the one-year time frame having passed. Relying on “any on-line dictionary” and the definition of “timetable’” in r. 1.03(1) of the Rules of Civil Procedure as “a schedule for the completion of one or more steps required to advance the proceeding”, Belobaba J. found that no timetable had been established.[^4]

[39] The decisions of St. Louis and the motion judge’s own decision in Lubus applied a different approach.

[40] St Louis involved a class action arising from a train derailment. The plaintiffs pursued independent environmental testing to ascertain the success of the defendant’s ongoing remediation efforts. It was understood that if the remediation efforts were successful, the plaintiffs were unlikely to proceed further with the action.

[41] The motion judge in St. Louis accepted that the court retained no residual discretion if none of the s. 29.1(1) requirements were met. However, he gave a broad interpretation to “timetable” and “steps required to advance the proceeding.” He found that case management conferences providing for reports on the environmental assessment constituted a schedule; the schedule in that case provided for two steps: the commencement of an environmental assessment and another case conference; and as there was no practical prospect of success on the certification motion absent the assessment, the environmental assessment was required to advance the proceeding. As such, the provisions of s. 29.1(1)(c) were met.[^5]

[42] In Lubus, a class action involving a cannabis company under Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36 (“CCAA”) protection and claims of misrepresentations against the company’s underwriters, the motion judge determined that a transfer of proceedings from Sarnia to Toronto did not amount to a “step” to advance the proceedings nor did the issuance of a new claim refining allegations and adding new plaintiffs. He also rejected the plaintiffs’ argument that obtaining an order lifting the CCAA stay met the definition, finding that s. 29.1(1)(b) and (c) refer to a step in the class action and not a CCAA proceeding. He considered that Bourque, St. Louis, Lamarche v. Pacific Telescope Corp., 2022 ONSC 2553, and LeBlanc et al. wereto the same effect but stated:

All of that being the case, I am prepared to be the fifth dentist on sugarless gum. I disagree with the previous judgments insofar as they can be seen to pronounce blanket statements covering all circumstances. My colleagues may have been entirely correct in resolving the cases before them; but in implementing any statutory provision, including section 29.1 of the CPA, context counts.

[43] He went on to add that circumstances may exist where a plaintiff seeks a timetable but the case management judge has identified a number of steps that need to be taken first. In Lubus, the plaintiffs arranged for the initial case conference and proposed a timetable leading to certification. The motion judge did not adopt this timetable but directed a series of other steps be taken. Although he had not specified an outside date at the time, on the s. 29.1(1) motion he held that a schedule for necessary steps had in effect been set at that case conference. In essence, he applied a contextual approach and accordingly dismissed the underwriters’ motion for dismissal.

[44] A similar approach was taken in McRae-Yu v. Profitly Incorporated et. al., 2024 ONSC 5615. In that case, MacLeod J. observed that s. 29.1(1) does not apply automatically and made reference to r. 4.33 of the Alberta Rules of Court, Alta Reg 124/2010, which applies to all civil proceedings and requires dismissal of an action if “3 or more years have passed without a significant advance in an action” unless, inter alia, “the delay is provided for in a litigation plan”. As such, he observed that though that the Alberta provision was not identical and was not aimed at class proceedings, certain principles described by the Alberta Court of Appeal in Rahmani v. 959630, 2021 ABCA 110 were not inconsistent with the jurisprudence developed under s. 29.1(1). MacLeod J. wrote at para. 10:

Jurisprudence under that Rule is well established and includes at least the following principles:

a. A functional as opposed to a formulistic approach is required in assessing whether a step constitutes a significant advance.

b. The Rule is context dependent and is not designed to encourage an ambush by one side after the parties had agreed to take a particular step.

c. The purpose of the Rule is not to regulate the efficient prosecution of actions but to prune out actions that have truly died.

d. Defendants may not obstruct, stall or delay the action in order to get the benefit of the Rule.

As MacLeod J. noted, the guidance from the Alberta Court of Appeal is not determinative but helpful.

(d) Discussion

[45] The approach in Lubus and mirrored in McRae is apt. A contextual interpretation is to be given to the interpretation of s. 29.1(1). It is not simply a mechanical exercise.

[46] What does this mean?

[47] It is clear that the legislature enacted this provision with a view to avoiding delay in the pursuit of class actions. As the Attorney General stated, delay not only uses valuable court resources but “there are also significant financial and reputational risks for Ontario businesses.” As mentioned, the focus of Bill 161 was on actions that were dormant, did not have merit, or that could not be resolved in a reasonable amount of time.

[48] This stated purpose supports a strict application of the interpretation to be given to s. 29.1(1). In my view, there is no judicial discretion engaged in the one-year time parameter. Thus, absent any other enumerated exceptions, once a motion judge finds that no timetable for completion of one or more other steps required to advance the proceeding has been established, the proceeding must be dismissed.

[49] However, as I will discuss, s. 29.1(1) does not involve a mechanical administrative dismissal but a motion before a judge who must consider the contextual framework imported by the words “a timetable … for completion of one or more other steps required to advance the proceeding”. The motion judge should decide on a case-by-case basis whether a timetable for a step required to advance the proceeding has been established. As the motion judge stated in Lubus at para. 42:

The aim of the exercise in a section 29.1 motion is not to implement the section literally no matter what the context or to apply a form of ‘zero tolerance’ regime to the delay question. Like any adjudicative question, it is the court’s role to interpret the statute as befitting the specific context and to apply to the circumstances the purpose that the statute seeks to address. Adjudication of a delay question necessarily requires a careful consideration of the factual/procedural distinctiveness of the case at bar. [Citation omitted.]

[50] The CPA does not define timetable or “steps required to advance the proceeding”. On the face of s. 29.1(1), three things are required: (i) a timetable; (ii) the timetable must provide either for the service of the representative plaintiff’s motion record in the motion for certification, or for the completion of “one or more other steps”; and (iii) the “one or more other steps” are required to advance the proceeding. As the steps are “other steps”, this means steps other than the service of the representative plaintiff’s motion record in the motion for certification.

[51] Typically, ascertaining whether a timetable has been established will be a straightforward exercise. As for the remaining requirements, as mentioned, the CPA provides at s. 35 that the rules of court apply to proceedings under the Act and reference may be had to the Rules of Civil Procedure. Rule 1.03 defines timetable as meaning “a schedule for the completion of one or more steps required to advance the proceeding (including delivery of affidavits of documents, examinations under oath, where available, or motions), established by order of the court or by written agreement of the parties that is not contrary to an order”. That definition encompasses a variety of initiatives that could constitute a step. Notably, each of the examples represents a step that is considered as required to advance the proceeding.

[52] Not any step would qualify to meet the s. 29.1(1) requirement. On a case-by-case basis, the case management judge[^6] would have to consider the totality of the proceeding and whether the completion of the step that was timetabled was required to advance the proceeding.

[53] Thus in St. Louis, Gordon J. found that a case conference scheduling status reports on an environmental assessment, the results of which could result in the end of the proceeding, amounted to a step required to advance the proceeding. It could not be said that this was necessarily a step required for certification but it was a step required to advance the proceeding.

[54] I agree with the motion judge’s analysis in Lubus; there is some flexibility associated with the interpretation to be given to “completion of one or more steps required to advance the proceeding”. This is consistent with a judicial rather than a mechanical administrative dismissal.

[55] “One or more other steps required to advance the proceeding” should be interpreted to include at least the kinds of motions that the CPA itself treats as valuable and necessary pre-certification steps. This is supported by the modern principle’s preference for interpretations that work coherently with other provisions of the legislation: see Sullivan, at § 13.02. Most notably, the 2020 amendments encourage any pre-certification motion that potentially disposes of the proceeding or narrows the issues. This would include a motion to strike pleadings. Specifically, Bill 161 added the following to the CPA:

4.1 If, before the hearing of the motion for certification, a motion is made under the rules of court that may dispose of the proceeding in whole or in part, or narrow the issues to be determined or the evidence to be adduced in the proceeding, that motion shall be heard and disposed of before the motion for certification, unless the court orders that the two motions be heard together.[^7]

[56] Given its nature, such a motion would typically have to be resolved before a timetable for service of a certification motion record could reasonably be set: Dufault v. Toronto Dominion Bank, 2021 ONSC 6223, 158 O.R. (3d) 395, at paras. 6-10.

[57] The motion judge determined that s. 29.1(1) assumes that the action has already been commenced and the statement of claim finalized. Under this section, the starting point of the one-year deadline is the first anniversary of “the day on which the proceeding was commenced”. Commencement of a proceeding as described in s. 2 of the CPA may be accomplished by the issuance of an originating process. Rule 1.03 of the Rules of Civil Procedure defines originating process as encompassing numerous types of documents, including a statement of claim, a notice of application, and a notice of action. It therefore would be inconsistent to conclude that s. 29.1(1) contemplates both a finalized statement of claim and a statement of claim at its genesis. It cannot be that reference to a commenced proceeding in s. 29.1(1) is given two different interpretations, one for the purposes of calculating the start of the one-year time frame and the other as assuming that a statement of claim has been finalized. This interpretation would also run counter to the content of s. 4.1 of the CPA.

[58] There may be cases where a motion to strike a statement of claim amounts to a step required to advance the proceeding. For instance, counsel for the respondent conceded that it is not an unusual occurrence in class proceedings for a defendant to move to strike the statement of claim. Frequently the commencement of a class proceeding is met with numerous attacks on the statement of claim by the defendant. Defendants should not be incentivized by s. 29.1(1) to keep the proceedings in the pleadings amendments stage so as to take advantage of the one-year time frame. Obstructionist conduct by the defendant or conduct designed to delay so as to gain the benefit of the statutory provision may permit a judge, applying a contextual approach, to find that the defendant is precluded from relying on the provision; see also McCrae at paras. 9-13.[^8]

[59] In a similar vein, a motion judge, applying a contextual approach, may determine that compliance by the representative plaintiff has been materially impeded by delay arising from motion scheduling. In Think Research Corporation v. N & M. Medical Enterprises, 2023 ONSC 6910, Koehnen J. observed that in Toronto in December 2023, the first date for a motion of less than two hours was available in 14 months and for a motion of over two hours, in 20 months. Section 4.1 of the CPA requires certain motions, including a motion to strike, to be heard and disposed of before the motion for certification.[^9] As mentioned, it seems unlikely that a judge would set a timetable for the certification motion before this step had been completed. As such, compliance with s. 29.1(1) by the representative plaintiff would be stymied unless the presiding judge was able to consider the matter in context and in light of the totality of the proceedings. That said, as I will later explain, there is no suggestion that such circumstances arose in this case.

[60] Counsel for the respondent argued that compliance with s. 29.1(1) is not onerous because a representative plaintiff only needs to file the certification motion record within the deadline and thereby comply with paragraph (a). Paragraph (a) requires a “final and complete motion record in the motion for certification”. The motion record consists of the affidavits setting out the factual background supporting the certification criteria, a crucial part of which is often expert evidence regarding the class definition and size and a formula for damage calculation: Michael A. Eizenga et al., Class Actions Law and Practice, 2nd. Ed. (Toronto, Canada: LexisNexis, 2024), at §§ 5.46-47 and 5.52. This of course does not include any cross-examinations that may be relied upon in support of the certification motion. These steps take time, particularly in complex actions, and preparation of “a final and complete motion record” that fairly establishes the representative plaintiff’s claim may be seriously compromised by the need to avoid dismissal within the one-year time frame of s. 29.1(1). I do not view paragraph (a) as a simple means of achieving compliance with the statutory time requirement.

[61] To summarize, first, there is no judicial discretion engaged in the one-year time parameter. Second, determining whether a timetable has been established will usually be a straightforward finding. Third, in addressing whether a timetable for completion of one or more other steps required to advance the proceeding has been established, a contextual approach is appropriate. When determining whether the step is required to advance the proceeding, the case management judge should consider the totality of the proceeding. Thus, the one year is the triggering event but motion judges have some flexibility in determining whether the remaining requirements are satisfied.

[62] Turning to the application of these principles to this case, the appellants submit that there were three required steps that were timetabled and that therefore qualified to meet the s. 29.1(1) imperatives: (i) the motion judge’s May 8, 2020 direction that the Tataryn appellant deliver a statement of claim within 45 days; (ii) the motion judge’s direction on the same day that the Tataryn appellant arrange a further case conference for further directions after delivery of the statement of claim; and (iii) a July 10, 2020 case conference where dates were set for the exchange of materials and the hearing of the respondent’s motion to strike.

[63] Neither of the first two steps identified by the appellants qualify as a timetable or a step required to advance the proceeding. Treating these inconsequential acts as meeting the parameters of s. 29.1(1) would in essence neuter the provision.

[64] When considering the context of the case, the July 10, 2020 case conference also does not meet the requirements of s. 29.1(1)(c). The motion judge fairly described the proceedings as “a long and winding road”. The proceeding was commenced by notice of application on May 17, 2018. Nearly one year later, on March 20, 2019, the representative plaintiff amended the notice of application and then amended it again on June 6, 2019. On May 8, 2020, the representative plaintiff consented to an order that the application be converted to an action and on June 22, 2020 he delivered a statement of claim mirroring the notice of application but adding new claims. From May 17, 2018 until the one-year time frame expired on October 1, 2021, the appellant delivered three different notices of application and four different statements of claim.

[65] Moreover, while a motion to strike could potentially be required to advance the proceeding, the Tataryn appellant’s own conduct prevented the motion to strike timetabled at the July 10, 2020 case conference from advancing the proceeding. Two years after that motion was decided, the appellants were still contesting a motion seeking their compliance with the court’s first decision and were ultimately unsuccessful.[^10] It was appropriate for the motion judge to find as he did. Applying a contextual approach, it could not be said that the appellants had shown that a timetable for completion of one or more other steps required to advance the proceeding had been established.

[66] Being the case management judge, the motion judge was familiar with the totality of the proceedings. He concluded:

I see nothing in the present record that would compel me to deviate here from the literal language of s. 29.1. In fact, in waiting a substantial amount of time before bringing the present motion, the Defendant itself has applied the deadline flexibly. The Plaintiffs have had more than ample time to get its house in order. Instead, they persisted in revising the claim in ways that have subjected it to successful challenges.

[67] I see no error in the motion judge’s conclusion.

[68] Ultimately, the certification motion record was delivered in June 2023, 20 months after the s. 29.1(1) deadline of October 1, 2021. Though not germane to the one-year calculation itself, this is an example of the mischief that s. 29.1(1) was designed to address. I would dismiss this ground of appeal.

(2) Waiver

[69] The appellants’ second ground of appeal is that the respondent waived s. 29.1(1) of the CPA. The appellants rely on the following conduct of the respondent. First, on August 3, 2021, the appellants’ counsel advised defence counsel to expect an amended statement of claim the next week to which defence counsel responded “Entirely satisfactory. It’s August. Judicial time slows down. If your Fresh as Amended Statement of Claim is delivered at the speed of sound instead of the speed of light, no one will protest.” Second, on November 1, 2021 (after the October 1, 2021 deadline had passed), defence counsel wrote, “Once we have your corrected pleading, we will be in a position to prepare a Statement of Defence.” Third, on April 4, 2022, defence counsel asked to schedule a motion to bring the appellants’ pleadings into compliance with the April 13, 2021 order and further agreed to schedule the certification motion hearing.

[70] The motion judge accepted that waiver of a statutory right is recognized at law but went on to state that the waiver must be by the party for whom the right was designed to protect: R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296. He reasoned that as s. 29.1(1) was designed for the benefit of defendants, the respondent had to waive the deadline. However, it could not be waived by accident. He also concluded that s. 29.1(1) of the CPA fell into the Supreme Court’s description of substantial public interest: “Waiver may not be permitted of statutory provisions in which there is a substantial public interest.”: Turpin, at 1316. In that regard, the motion judge relied on the statements made by the Attorney General described earlier in these reasons when the amendments to the CPA were introduced.

[71] To establish waiver, the party waiving must have had full knowledge of their rights and demonstrated an unequivocal and conscious intention to abandon those rights: Saskatchewan River Bungalows Ltd. v. Maritime Life Insurance Co, 1994 CanLII 100 (SCC), [1994] 2 S.C.R. 490, at p. 500; Marchischuk v. Dominion Industrial Supplies Ltd., 1991 CanLII 59 (SCC), [1991] 2 S.C.R. 61, at p. 68, aff’g Marchischuk v. Dominion Industrial Supplies Ltd. (1989), 1989 CanLII 7263 (MB QB), 58 Man. R. (2d) 56 (Q.B.).

[72] The motion judge concluded that the conduct of the respondent did not amount to waiver. He rejected the appellants’ argument that:

unbeknownst to [respondent’s] counsel, the series of motions … had the effect of waiving the [respondent’s] right to seek dismissal for delay. I see no principled basis for interpreting waiver in that way. Section 29.1 places an onus on plaintiffs and thereby confers rights on defendants, and those rights are not notionally waived by the rights-holding party bringing a number of successful motions – i.e. motions that were also an exercise of its rights.

[73] I see no reason to interfere with these findings. As such, it is unnecessary for me to decide whether s. 29.1(1) precludes waiver because the provision engages a substantial public interest.

(3) Availability of a Phoenix Order

[74] The appellants’ third ground of appeal is that the motion judge erred in declining to grant a Phoenix order. As mentioned, in D’Haene, Perell J. dismissed a class proceeding for delay under s. 29.1(1) but ordered that the dismissal would be set aside if the representative plaintiff filed a certification motion record within a specified time.

[75] The motion judge in the case under appeal determined that such an order would be directly contrary to the policy goal underlying s. 29.1(1). “[S]ection 29.1 would not address the problem it set out to address if a plaintiff can bring an action, delay it until it gets dismissed under s. 29.1, and then just start a new action as if nothing had happened”: at para. 23.

[76] I agree. In this case, the motion judge went on to note that he made no comment on whether some other putative class member would be in a position to start a similar case in the future as described in Bourque[^11] as that was a hypothetical question. Again, I agree. However, I should note that while refiling the identical action with a different plaintiff may not circumvent any procedural requirements, arguably it circumvents the spirit of s. 29.1(1).

[77] In any event, the motion judge did not err in declining to grant a Phoenix order.

(4) Inherent Jurisdiction

[78] The appellants submit that the motion judge erred in failing to consider a court’s inherent jurisdiction over the accounts of lawyers and the absence of any time bar in the Solicitors Act. This argument was not pressed at the hearing, but I will address it briefly based on the written submissions.

[79] The respondent raises two objections to this ground of appeal. First, the respondent submits that the appellants never raised or pleaded this inherent jurisdiction argument and there is no evidence to support it. Second, the legislature has mandated that dilatory class actions be dismissed; no exception is made for a class action that engages the Solicitors Act or names lawyers as defendants.

[80] As a general rule, appellate courts do not permit an issue to be raised for the first time on appeal: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. A party raising a new issue on appeal must satisfy the court that the court should exercise its discretion to permit the argument to be advanced: 7550111 Canada Inc. v. Charles, 2020 ONCA 386, 21 R.P.R. (6th) 1, at para. 14.

[81] The appellants have failed to meet their onus to satisfy the court that this new argument ought to be permitted. The evidentiary record does not allow for effective consideration of this issue quite apart from the obvious unfairness associated with raising this issue at this late stage in the proceeding. I would not give effect to this ground of appeal.

(5) Dismissal of the Rajan Claim

[82] Lastly, the appellants submit that the motion judge erred in dismissing the appellant Rajan’s action.

[83] On January 11, 2023, the motion judge granted leave to issue a new statement of claim and to add Mr. Rajan as an additional plaintiff. The appellants served their revised statement of claim on June 6, 2023 and delivered a certification motion record on June 8. The appellants complain that Mr. Rajan’s claim ought not to have been dismissed given that he delivered a completed certification motion record within five months of leave being granted to add him as a party. As such, the appellants argue that the Rajan claim met the s. 29.1(1) one-year requirement and his proposed class action ought not to have been dismissed.

[84] This argument must fail for two reasons.

[85] Section 29.1(1) requires the court to dismiss a “proceeding” unless the plaintiff takes a required step “by the first anniversary of the day on which the proceeding was commenced” (emphasis added). Rule 5 of the Rules of Civil Procedure governs joinder of parties and speaks of “in the same proceeding”. Adding a party does not alter the characterization of a proceeding. As such, adding Mr. Rajan as a party did not alter the proceeding to permit escape from the ambit of s. 29.1(1).

[86] In addition, as argued by the respondent, nothing in the CPA suggests that adding a plaintiff “resets the clock” for that new plaintiff. Reading such a provision into the CPA could open the statute to the abuse of regularly adding plaintiffs which would obviate the clear legislative intent reflected in s. 29.1(1).

DISPOSITION

[87] For these reasons, I would dismiss the appeal. If they are unable to agree, the parties are to make written submissions on costs not to exceed four pages in length, the respondent within ten days of release of these reasons and the appellants within ten days thereafter.

Released: January 2, 2025 “S.E.P.”

“S.E. Pepall J.A.”

“I agree. B.W. Miller J.A.”

“I agree. D.A. Wilson J.A.”

[^1]: The proceedings were stayed against the other defendants. They are not parties to this appeal.

[^2]: The motion judge’s chronology cites this date but the order was dated May 17, 2021 and the Reasons for Judgment were dated April 13, 2021.

[^3]: At the time, paragraph (c) included at the beginning the words “[the court] has ordered that the proceeding not be dismissed and”. On June 3, 2021, the Supporting Recovery and Competitiveness Act, 2021, S.O. 2021, c. 25 removed these words.

[^4]: He also stated that in the vast majority of cases, the dismissed proceedings can be refiled against the same defendants with just a change in the proposed representative plaintiff.

[^5]: The respondent describes St. Louis as an outlier in the case law but it is cited as authority in Martin at para. 28.

[^6]: Consolidated Civil Provincial Practice Direction, (February 1, 2024), at para. 85 provides that “the judge hearing the pre-trial motions will case manage the proceeding”.

[^7]: Although technically s. 4.1 does not apply to this proceeding, it may still inform the interpretation of s. 29.1(1).

[^8]: As noted, in this case under appeal, the motion judge made a finding at para. 6 that “none of the delays to date can be said to be the fault of the Defendant.”

[^9]: Under s. 4.1, the court may order that the motion for certification be heard together with a motion contemplated by this section, but this has been treated as having limited application. See Dufault, at paras. 6-10.

[^10]: On April 13, 2021, as a result of the respondent’s first motion to strike, the motion judge ordered that the pleadings against the individual defendants be struck. The respondent’s motion to bring the appellants into compliance with this order was heard on June 29, 2022, and the motion judge ultimately granted this part of the respondent’s motion. See Tataryn v. Diamond & Diamond LLP, 2023 ONSC 287, at paras. 5-13.

[^11]: In obiter, this Court stated in Martin, at para. 27, that this is an available course of action.