COURT FILE NO.: CV-20-636770-CP

DATE: 20220114

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANNA BOURQUE

Plaintiff / Respondent

• and -

INSIGHT PRODUCTIONS LTD., INSIGHT-A RUSSELL PETERS CHRISTMAS LTD., INSIGHT-BATTLE OF THE BLADES 2 BOOT CAMP LTD., INSIGHT-BATTLE OF THE BLADES 2 SPIRIT OF GIVING LTD., INSIGHT-BATTLE OF THE BLADES 3 GAME ON LTD., INSIGHT-BATTLE OF THE BLADES 3 LTD., INSIGHT-BATTLE OF THE BLADES 4 GAME ON LTD., INSIGHT-BATTLE OF THE BLADES 4 LTD., INSIGHT BATTLE OF THE BLADES 5 GAME ON LTD., INSIGHT BATTLE OF THE BLADES 5 LTD., INSIGHT-BIG BROTHER CANADA LTD., INSIGHT-BIG BROTHER CANADA 2 LTD., INSIGHT BIG BROTHER CANADA 3 LTD., INSIGHT BIG BROTHER CANADA 4 LTD., INSIGHT BIG BROTHER CANADA 5 LTD., INSIGHT BIG BROTHER CANADA 6 LTD., INSIGHT BIG BROTHER 7 CANADA LTD., INSIGHT BIG BROTHER CANADA 8 LTD., INSIGHT-CANADA SINGS LTD., INSIGHT-CANADA SINGS 2 LTD., INSIGHT-CGT LTD., INSIGHT-DOC PRODUCTIONS LTD., INSIGHT-FALCON BEACH 1 LTD., INSIGHT-ICONS AND RISING STARS LTD., INSIGHT -KITCHEN 2 LTD., INSIGHT-KITCHEN 3 LTD., INSIGHT-KITCHEN 4 LTD., INSIGHT-MARATHON LTD., INSIGHT-NEVER EVER LTD., INSIGHT-NEVER EVER 2 LTD., INSIGHT-TOP CHEF CANADA LTD., INSIGHT ABS LTD., INSIGHT AMERICA EH LTD., INSIGHT BICJ 2 LTD., INSIGHT CANADA DAY 2017 LTD., INSIGHT CSA 19 LTD., INSIGHT CSA 20 LTD., INSIGHT CSA 2018 LTD., INSIGHT CWOF 18 LTD., INSIGHT CWOF 19 LTD., INSIGHT DESTINATION DETOUR HOLDINGS LTD., INSIGHT DESTINATION DETOUR LTD., INSIGHT DREAM VACATION LTD., INSIGHT GP SERIES LTD., INSIGHT GREENPEACE DOC LTD., INSIGHT HIP LTD., INSIGHT HITMEN LTD., INSIGHT HMD CHRISTMAS LTD., INSIGHT JOHNNY REID CHRISTMAS LTD., INSIGHT JOKE OR CHOKE LTD., INSIGHT JUNOS 19 LTD., INSIGHT JUNOS 20 LTD., INSIGHT JUNOS 2016 LTD., INSIGHT JUNOS 2017 LTD., INSIGHT JUNOS 2018 LTD., INSIGHT JUNOS HOLIDAY 2017 LTD., INSIGHT KITCHEN 5 LTD., INSIGHT KITCHEN 5A LTD., INSIGHT KITCHEN 6 LTD., INSIGHT KITCHEN 7 LTD., INSIGHT KITCHEN 8 LTD., INSIGHT LAUNCH LTD., INSIGHT LAUNCH 2 LTD., INSIGHT LIGHTFOOT LTD., INSIGHT LIMELIGHT LTD., INSIGHT NYE 18 LTD., INSIGHT NYE 19 LTD., INSIGHT NYE 150 LTD., INSIGHT NYE 2017 LTD., INSIGHT PRODUCTION COMPANY LTD., INSIGHT SCTV 2018 SPECIAL LTD., INSIGHT THE SCHEME TEAM LTD., INSIGHT-BATTLE OF THE BLADES 2 LTD., INSIGHT BATTLE OF THE BLADES LTD., INSIGHT-COMEDY GOLD LTD., INSIGHT-FALCON BEACH 2 LTD., INSIGHT-FALCON BEACH LTD., INSIGHT-HATCHING MATCHING AND DISPATCHING LTD., INSIGHT- NAKED LTD., INSIGHT-SABBATICAL LTD., INSIGHT-VANCOUVER PRODUCTION 2009 LTD., ENDURANCE ENTERTAINMENT 5 LTD. and CHASE ENTERTAINMENT 6 LTD.

Defendants / Moving Parties

Proceeding Under the Class Proceedings Act, 1992

BEFORE: Justice Edward Belobaba

COUNSEL: Paul J. Martin and Pavel Sergeyev for the Defendants / Moving Parties

Stephen J. Moreau for the Plaintiff / Responding Party

HEARD: January 11, 2022 by Zoom Video

Motion to dismiss for delay

[1] The defendants move to dismiss this proposed class action for delay under s. 29.1 of the amended Class Proceedings Act.[^1] For the reasons that follow, the motion is granted and the proposed class proceeding is dismissed.

[2] The point of this decision is simple: s. 29.1 of the CPA means what it says.

[3] I note, however, that class counsel can refile the identical action against the same defendants but with a different proposed class representative.

Section 29.1

[4] Class actions typically move at glacial speed. Section 29.1 of the amended CPA was enacted to improve matters.[^2] It provides as follows:

Mandatory dismissal for delay

29.1 (1) 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.

[5] No other relevant steps or circumstances have been specified by regulation under sub-part (d). In order to comply with s. 29.1(1), only one of (a), (b) or (c) must be satisfied.

Analysis

[6] The proposed class action (alleging employee misclassification by the defendant group of television production companies) was commenced on February 21, 2020. The amended CPA, including s. 29.1, took effect on October 1, 2020. According to the transition provision, actions commenced before this date — such as the one here — were deemed to have been commenced on October 1, 2020 for the purposes of the one-year mandatory dismissal date.[^3] The one-year mandatory dismissal date for the action herein was therefore October 1, 2021.

[7] The statutory language is clear: if none of the requirements set out in s. 29.1 are satisfied by the one-year anniversary date, the proposed class action “shall” be dismissed for delay. Here, none of the requirements were satisfied by October 1, 2021: (a) the plaintiff had not filed her motion record for certification; (b) no agreed-to timetable regarding the service of the motion record or the completion of any step that would advance the proceeding had been filed with the court; and (c) no timetable had been established by the court.

[8] The defendants brought this motion for dismissal on October 5, 2021. The plaintiff served her certification motion record the next day, October 6, 2021 — six days too late.

[9] The plaintiff makes two basic submissions: one, that a timetable was in fact established by the court during a telephone case conference on May 8, 2020; and two, even if it wasn’t, s. 29.1, properly interpreted, should not result in a dismissal for delay on the facts herein. In my view, neither submission succeeds.

[10] No timetable was established by the court. The parties disagree about what was discussed with the court at the May 8, 2020 case conference. According to the defendants, the timetable question was deferred. Because the plaintiff expected to serve her certification motion record during the summer, the court advised that a timetable would be established after the motion record was served. I pause here to note that this accords with my practice as a class actions judge — the time the defendant may need to respond to a certification motion record and prepare for a certification hearing is best determined after the motion record is served. Thus, say the defendants, no timetable was discussed or established at this case management conference. However, in her responding affidavit, the plaintiff disputed this evidence. The plaintiff’s version was that both counsel and the court agreed that the plaintiff could serve her certification record “when she can”.

[11] The defendants objected to the admissibility of this portion of the plaintiff’s affidavit. Because the plaintiff decided to place in dispute what was said at the case management conference, it was improper to tender a “lawyer’s affidavit” on these disputed facts unless the motion was argued by independent counsel. This did not happen here. Moreover, because the plaintiff’s affiant had no direct knowledge of what was discussed at the case management conference, her evidence was inherently unreliable. In these circumstances, say the defendants, the impugned portions of the plaintiff’s affidavit should be struck out, disregarded or given no weight.[^4]

[12] These are compelling submissions and I am inclined to agree. However, in my view, it will be more helpful overall to address the core issue directly and decide the motion on the merits.

[13] Thus, even if this court were to accept the plaintiff’s version, no timetable of any sort was established at the May 8, 2020 case conference. A “timetable” is “a plan of times at which events are scheduled to take place, especially towards a particular end”.[^5] Indeed, Rule 1.03(1) (which explicitly apply to class proceedings[^6]) says the same thing and defines “timetable” as “a schedule for the completion of one or more steps required to advance the proceeding”.

[14] Telling the plaintiff that she can file her motion record “when she can” is not a “timetable”. It is the antithesis of a timetable. It is the court saying, in essence, “ignore the mandatory requirements in s. 29.1 and the statutory objective to ‘advance the proceeding’, go ahead and do whatever you want, whenever you can.”

[15] Not only would such a direction be contrary to the mandatory dismissal provision, this is not a direction that the court could even make. There is nothing in s. 29.1 that says “unless the court orders or directs otherwise” or “unless there is good reason not to dismiss for delay.” The statutory language and legislative intent could not be plainer. It cannot be said that a “timetable” had been established by the court as required by s. 29.1(1)(c ).

[16] Statutory interpretation does not assist the plaintiff. Counsel for the plaintiff argues that the CPA is remedial legislation and should be given “a generous, broad, liberal and purposive interpretation".[^7] I agree. But where the explicit purpose of the statutory provision in question is the timely advance of class action litigation (for the benefit of not just the defendants but also the putative class), the plain language interpretation of s. 29.1 that is being applied herein is actually “liberal and purposive.”

[17] The plaintiff also refers to s. 12 of the CPA. It is true that the court has wide-ranging case management powers respecting the conduct of a class proceeding “to ensure its fair and expeditious determination”. But s. 12 cannot over-ride the mandatory provisions in the CPA,[^8] such as, for example, the certification requirements in s. 5(1) or, here, the dismissal for delay requirements in s. 29.1. Counsel for the plaintiff could point to no caselaw that suggested otherwise. Moreover, using s. 12 to override s. 29.1 would not be “fair and expeditious” to either the defendants or the class. If the proposed representative plaintiff cannot comply with the basic requirements in the CPA, then perhaps the putative class deserves another representative plaintiff who can.

[18] Three more points should be addressed:

(i) The fact that the May 8, 2020 case conference was held at a time when the Covid- 19 pandemic had closed down the courts and only telephone conferences were proceeding is of no moment. By the third week of May, 2020 and certainly by the end of May, judges were hearing civil matters (motions and trials) in the Toronto Region using Zoom video technology. The plaintiff was not precluded from bringing a motion for directions establishing the required timetable, at any time over the next 16 months, from June, 2020 to the end of September, 2021. Instead, the plaintiff did nothing.[^9]

(ii) The fact that the statutory limitation periods in Ontario were suspended for a period of time due to the pandemic is also of no moment. These suspensions came to an end on September 14, 2020.[^10] Section 29.1 of the CPA did not come into force until October 1, 2020. Therefore, the statutory suspension of limitation periods never applied to section 29.1. Moreover, the fact that the provincial government lifted the suspension on September 14, 2020 suggests that after that date, the pandemic was no longer regarded as a legitimate justification for failing to meet legislatively imposed deadlines.

(iii) The fact that the same plaintiff was advancing a similar “misclassification” class action against another group of television production companies (the Cineflix defendants) over the same time period is also of no relevance to the s. 29.1 issue. Even if counsel for the plaintiff was busy with the Cineflix matter or had otherwise decided, for internal business reasons, to “go slow” with this action until the Cineflix matter was settled, this would not justify non-compliance with the plain language of s. 29.1. Indeed, as the defendants submit, this “go slow” strategy is precisely the type of conduct that section 29.1 was enacted to control.

[19] Final comment. If s. 29.1 of the amended CPA is to achieve its intended purpose — to help advance class action proceedings that otherwise tend to move at glacial speed — then it’s to everyone’s advantage (both putative class members and defendants) that the mandatory dismissal provision be interpreted and applied as written. Particularly when compliance is easy and the consequence of non-compliance (dismissal of the action) although inconvenient is not particularly onerous — 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.

[20] Most class action lawyers already understand this and have factored the s. 29.1 one-year dismissal date into their tickler systems. For those who have not yet done so, this decision may be a helpful reminder.

Disposition

[21] The defendants’ motion to dismiss for delay is granted. The proposed class action is dismissed with costs.

[22] Order to go accordingly.

Costs

[23] The defendants seek costs for both the motion and the dismissed action. I have asked counsel to try to agree on the appropriate costs award. In doing so, they should keep two points in mind. First, the defendants’ own description of their motion to dismiss as “unusually straightforward.” Second, the likelihood that the dismissed action will simply be refiled with a different representative plaintiff.

[24] If costs cannot be agreed to, I will be pleased to receive brief written submissions from the defendants within 21 days and from the plaintiff within 21 days thereafter.

Signed: Justice Edward Belobaba

Notwithstanding Rule 59.05, this Judgment [Order] is effective and binding from the date it is made and is enforceable without any need for entry and filing. Any party to this Judgment [Order] may submit a formal Judgment [Order] for original signing, entry and filing when the Court returns to regular operations.

Date: January 14,2022

[^1]: Class Proceedings Act, 1992, S.O. 1992, c. 6, as am.

[^2]: In its Final Report on Class Actions (July, 2019), the Law Commission of Ontario addressed the problems of delay in class action litigation and recommended “an automatic dismissal provision” if certain steps had not been taken within a prescribed time (at 20).

[^3]: CPA, supra, note 1, s. 39(2).

[^4]: Vuniqi v. Paramount Property Management, 2020 ONSC 7934 at para. 49; Ferreira v. Cardenas, 2014 ONSC 7119 at para. 25; Premanathan v. Kandasamy, 2021 ONSC 3207 at paras. 27-28.

[^5]: See any on-line dictionary.

[^6]: CPA, s. 35.

[^7]: 578115 Ontario Inc. v. Sears Canada Inc., 2010 ONSC 4571 at para. 30 (per Strathy J.).

[^8]: Berry v. Pulley, 2001 28228 (ON SC), [2001] O.J. No. 911 (S.C.J.). at paras. 39-40.

[^9]: I remind class counsel that compliance with s. 29.1 is not the defendant’s responsibility. It is well settled that “the responsibility for moving an action forward is ‘a burden that is born by the plaintiff’ and is ‘not the responsibility of the defendant’.” See Mayhew v. Paddon + York Inc., 2014 ONSC 57 at para. 29; and Prescott v. Barbon, 2018 ONCA 504 at para. 30.

[^10]: O. Reg. 73/20, enacted pursuant to the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, s. 7.1(2).