Court File and Parties

COURT FILE NO.: CV-09-371880-00CP

DATE: 20220531

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christopher LeBlanc, Patrick Dawson on his own behalf and as Executor of the Estate of Jennifer Lou Dawson, Estate of Norris Roy Tremain by his Executrix JoAnn Tremain

AND:

The Attorney General of Canada on behalf of Her Majesty the Queen in Right of Canada representing the Minister of Health, Jo Hauser, Lileth Gervais, Randall Klotz, John Doe, Jane Roe

BEFORE: J.T. Akbarali J.

COUNSEL: Alfred Kwinter, Timothy H. Leigh-Bell, and Ken Arenson, for the Plaintiffs/Responding Parties

John Spencer, Victor Paolone and Adam Gilani, for the Defendants/Moving Parties

Andrew Parley, for the interested party custodian of trust records

HEARD: May 30, 2022

Proceeding Under the Class Proceedings Act, 1992

ENDORSEMENT

Overview

[1] The defendants move to dismiss this class proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”). The plaintiffs do not oppose the relief sought. However, they seek an order that the dismissal of the action be delayed for a period of 60-90 days.

Background

[2] This proposed class proceeding was commenced on June 5, 2006, in Sudbury, on behalf of “persons who had received payments from [the federal government] and who lost lawsuits or accepted reduced payment compared to tort damages to release their claims for compensation for HIV infection due to tainted blood, and their families”. The claim was promptly served on the defendants.

[3] On March 13, 2007, the proceeding was transferred to Toronto. Over four years later, on December 21, 2011, the plaintiffs requested that a class action judge be assigned to case manage the proceeding.

[4] The plaintiffs requested a case management conference almost five years later, on November 7, 2016. At that time, counsel of record, Mr. Arenson, advised the court that Mr. Kwinter and Mr. Leigh-Bell would assume carriage of the file as counsel of record. He also advised the court that the plaintiffs sought to amend the pleadings to add a sub-class for individuals who were beneficiaries of the HIV Fund trust that was established under the Companies Creditors Arrangement Act proceeding of the former Canadian Red Cross Society. The plaintiffs expressed their intention to bring a motion for production from Lenczner Slaght LLP, the custodian of the trust records (represented by Mr. Parley) for access to confidential personal and medical records of the HIV Fund beneficiaries as potential class members. I understand that motion was discontinued on February 24, 2017.

[5] The next step in the action was held before me, on March 30, 2022, when, due to my reaching out to counsel to determine the status of this action, a case conference was held. At that time, the plaintiffs indicated their intention to again move for disclosure of the information sought from the custodian of the trust records, and the defendant indicated its intention to bring this motion.

[6] The defendant has filed a motion record and factum in support of its motion to dismiss this proceeding under s. 29.1 of the CPA. The plaintiffs have filed no material in response.

[7] Shortly before the motion, in a letter approved by plaintiffs’ counsel, defence counsel advised me that the motion would be unopposed. However, the morning of the motion, I received correspondence from Mr. Leigh-Bell advising that the plaintiffs were seeking that the effective date of the dismissal be delayed to give plaintiffs’ counsel or agent the opportunity to identify and contact, perhaps with Mr. Parley’s cooperation, 74 HIV Fund claimants and their families to give them an opportunity to participate in a fresh action which the plaintiffs intend to bring. This fresh action will require new representative plaintiffs, and counsel hope to find them among the 74 HIV Fund claimants.

[8] I understand that plaintiffs’ counsel has been in discussions with Mr. Parley in the hopes of working out a communication strategy through which Mr. Parley could both, protect the privacy of the 74 Fund claimants and meet his firm’s ethical obligations as custodian of the records, and which would also satisfy plaintiffs’ counsel. At the moment, those discussions have not yielded a consensus on how such communication could take place. I make no comment on what terms would be appropriate. The issue of whether and if so, how, such communication should take place is not before me.

[9] The delay in dismissal is sought to give counsel the opportunity to pursue this attempt to locate a new representative plaintiff or plaintiffs, and to have an extant court proceeding in which, if required, the plaintiffs could seek a production order against the custodian.

[10] The defendants oppose the delay. They argue that the case law does not give me the discretion to delay the effective date of the dismissal. In any event, they argue that the plaintiffs have had months since the last case conference, and indeed years since the commencement of the proceeding, to address these concerns, which were raised years ago, and they have not. The defendants oppose any additional delay.

Analysis

[11] Section 29.1 of the CPA is a relatively new amendment. It provides:

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.

[12] Pursuant to s. 39(2) of the CPA, class proceedings, like this one, that were commenced before s. 29.1 came into force are deemed to have been commenced on the day the new provisions came into force. That day was October 1, 2020, so the one-year deadline for this action passed on October 1, 2021.

[13] Section 29.1 of the CPA was considered by Belobaba J. in Bourque v. Insight Productions, 2022 ONSC 174. In that decision, Belobaba J. noted that the statute is clear about the requirements that must be met by the plaintiff to avoid mandatory dismissal under s. 29.1: at para.7. In this case, none of those requirements to avoid dismissal exist.

[14] Justice Belobaba found that, while the CPA is remedial legislation and should be given a generous, broad, liberal and purposive interpretation, the explicit purpose of s. 29.1 is “the timely advance of class action litigation (for the benefit of not just the defendants but also the putative class)”: at para. 16. Justice Belobaba also found that s. 12 of the CPA, which confers on the court “wide-ranging case management powers respecting the conduct of a class proceeding ‘to ensure its fair and expeditious determination’” did not assist the plaintiff. Section 12 cannot override the mandatory provisions in the CPA, such as s. 29.1: para. 17.

[15] I agree with Belobaba J.’s analysis. Applying the provision as written, I do not have discretion to delay the effective date of the dismissal of the proceeding.

[16] Even if I did have discretion, I would not have exercised that discretion in favour of the plaintiffs on this motion. Although plaintiffs’ counsel insisted that I could see clearly the “immense prejudice” to the plaintiff class, in fact I cannot. Plaintiffs’ counsel advised that, in their view, the claims they seek to advance in a new proceeding crystallized in 2011, when this proceeding was already ongoing. They argue that the dismissal of this proceeding will commence the running of the limitation period, although they were unaware of what limitation period would apply. Assuming the plaintiffs are correct about the limitation period, I can see no prejudice to the putative class were the limitation period to begin to run. The class will have the length of the limitation period to commence a claim. It is a truism that the legislature has concluded that the length of the applicable limitation period is sufficient to preserve the rights of potential claimants. There is no evidence to support any conclusion that this class needs more time than the limitation period, or indeed, any basis on which I could pre-emptively extend the limitation period. Moreover, if there was a limitations issue that would cause prejudice, I would have expected to have materials and argument on the issue, not simply a conclusory submission.

[17] For these reasons, I grant the defendants’ motion. In particular:

a. I order that, pursuant to section 29.1(1) of the CPA, the within action shall be dismissed, except that I reserve jurisdiction to approve the form of notice discussed below;

b. I order that, pursuant to s. 29.1(2) of the CPA, plaintiffs’ counsel shall, at their own expense, give notice of the dismissal of the action to the putative class that meets the notice requirements of s. 20 of the CPA. Plaintiffs’ counsel shall provide me with a copy of the proposed notice for court approval before the notice is distributed. The proposed notice shall be served on the defendants and provided to me within 14 days of today’s date. If a case conference is necessary to deal with it, I will convene one.

[18] No party seeks costs, and none are ordered.

J.T. Akbarali J.

Date: May 31, 2022