COURT FILE NO.: CV-18-00076567-0000 DATE: 2023-05-30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.B., Plaintiff AND: University of Ottawa, Defendant

BEFORE: Associate Justice M. Fortier

COUNSEL: Blandie Samson, for the Plaintiff Ryder Gilliland and Corey Groper, for the Defendant

HEARD: January 31, 2023

Endorsement

Introduction

[1] This is a motion by the Defendant, University of Ottawa (“the University”) for an Order dismissing this action for delay pursuant to section 29.1 of Ontario’s Class Proceedings Act, 1992, S.O. 1992, c.6 (the “CPA”). The Plaintiff opposes the motion.

[2] Section 29.1 of the CPA provides that the court shall, on motion, dismiss a proposed class proceeding if, within one year of the action being commenced, the proposed plaintiff has not filed a certification motion, or a timetable has not been agreed upon by the parties or ordered by the court.

[3] The Defendant contends that none of these events has occurred and therefore the action must be dismissed.

[4] For the reasons that follow, the Defendant’s motion is granted, and the action is dismissed.

Background and Position of the Parties

[5] This Proposed Class Proceeding was commenced by the representative Plaintiff, A.B., against the University on May 25, 2018. The main allegation is that the University’s Student Academic Success Services department (the “SASS”) lost an external hard drive containing the personal information of hundreds of students who had received academic accommodation.

[6] A.B. seeks to represent a “Proposed Class”, comprised of all individuals whose personal information was in possession of the SASS between 2013 and 2016. Among other things, A.B. pleads on behalf of the Proposed Class, negligence, breach of fiduciary duty, breach of confidence, and negligent misrepresentation.

[7] According to the University, other than commencing this action in May 2018, A.B. has not taken any active steps to advance the proceeding or to comply with s. 29.1 of the CPA. The Plaintiff has not served or filed a motion record for certification and no timetable has been filed with or ordered by the court. As the Plaintiff has not complied with the provisions of s. 29.1, the Defendant submits that the action must be dismissed.

[8] Although the Plaintiff concedes that he has not filed a certification motion, or that no timetable has been agreed upon by the parties or ordered by the court, the Plaintiff argues that the action should nevertheless not be dismissed because:

a) The Plaintiff has taken steps to advance the proceeding through settlement negotiations and Offers to Settle, and contends that this constitutes a step to advance the proceeding pursuant to the CPA. The Plaintiff maintains that section 29.1 was not meant to bar cases where the parties have been negotiating a settlement since the commencement of a claim.

b) In the alternative, the Plaintiff argues that doctrine of promissory estoppel precludes the Defendant from relying on the limitation period under s. 29.1.

[9] The Plaintiff raised in oral argument, in the further alternative, that if the Defendant’s motion is granted, the court ought to permit the Plaintiff to refile the identical action against the Defendant but with a different proposed class representative.

Law and Analysis

[10] Section 29.1 of the CPA was amended by the Smarter and Stronger Justice Act, 2020. [1] The amendment to s. 29 was to address the problems of delay in class action litigation and 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.

[11] No “other steps, occurrences or circumstances” have been specified by the regulations under sub-part (d), and therefore, to comply with s. 29.1(1), only one of (a), (b) or (c) must be satisfied.

[12] The amendments to the CPA come into force on October 1, 2020. According to the transition provision, actions commenced before October 1, 2020, were deemed to have been commenced on October 1, 2020. Therefore, the mandatory dismissal date for actions commenced before October 1, 2020, as in the present action, is October 1, 2021.

[13] The principles the court is to consider on motions to dismiss a proposed class action for delay under section 29.1 the CPA can be summarized as follows:

a) the statutory language of the CPA 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; [2]

b) the court cannot override the mandatory provisions of the CPA. There is nothing in s. 29.1 that says, “unless the court orders or directs otherwise”; [3]

c) although the CPA does not define a timetable, the CPA is subject to Rules of Civil Procedure (the “Rules”). [4] Rule 1.03 of the Rules defines a timetable as “a schedule for the completion of one or more steps required to advance the proceeding…established by order of the court or by written agreement of the parties that is not contrary to an order”; [5]

d) to comply with the criteria in s. 29.1(b), the agreed timetable must not only be in writing but must also filed with the court; [6]

e) merely considering, or even committing to a sequence of events is not enough to comply with the criteria in sections 29.1 (b) and (c); [7]

f) the merits of the case are irrelevant on a s. 29.1 motion. [8]

[14] In my view, settlement negotiations between the parties do not meet the requirements of s. 29.1 of the CPA. As with “considering or committing to a sequence of events”, settlement discussions do not fall within s. 29.1. Moreover, settlement negotiations are not required to advance a proceeding and timetables do not contemplate settlement discussions.

[15] The Plaintiff argues that the University is estopped from seeking a dismissal of the action as he relied on the settlement offers and negotiations as the basis not to file a certification record or other documents with the court prior to the expiration of the limitation period.

[16] A party wishing to avail itself of the defence of promissory estoppel must provide the required evidence to meet the required test. Moreover, any waiver of a limitation period must be explicit. As held by Gomery J. in Lamarche v. Pacific Telescope Corp. [9] on a similar motion for dismissal for delay under s. 29.1 of the CPA:

[21] … Promissory estoppel is an equitable defence which requires a party to establish that (1) the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on; and (2) the party arguing promissory estoppel relied on the promise or assurance by taking some action or in some way changing its position; Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 SCR 50, at p. 57.

[22] [The defendant] Mr. Matthews in no way indicated, in his February 8 email, that his clients were willing to wait past the one-year anniversary of the commencement of the action for the plaintiff to serve its certification motion or to take other steps that would foreclose a s. 29.1 motion. Waiver of a limitation period “must be clear and unambiguous to have effect”: Aletkina v. Hospital for Sick Children, 2014 ONSC 6263 (Div.Ct.), at para. 16. Detrimental reliance must also be established. The plaintiff did not file an affidavit in response to this motion. An affidavit from a senior associate in Mr. Orenstein’s office does not allege that he, or anyone else in the firm, relied on Mr. Matthews’ email when it failed to take any steps to forestall a s. 29.1 motion.

[17] In the present case, there is no evidence before the court that establishes the defence of promissory estoppel. There is no evidence of an intention to waive the limitation period under the Act. As in Lamarche, the Plaintiff did not file an affidavit in response to this motion. In fact, there was no affidavit in the responding record at all. Rather, the responding record consists of an index along with a number of media articles and a series of emails between counsel, some of which improperly contain privileged information regarding settlement discussions and none of which evidence an intention to waive the limitation period.

[18] As noted, it is uncontradicted that the plaintiff did not file a certification motion, or a timetable agreed upon by the parties or ordered by the court. In my view, there is no evidence before me that allows me to conclude that the requirements of s. 29.1 (a), (b) or (c) have been satisfied in relation to the October 1, 2021, limitation period that applies to this proceeding. Accordingly, the statutory language of the CPA is mandatory – if none of the requirements of s. 29.1 are satisfied by the one-year anniversary date, the proposed class action “shall” be dismissed for delay.

[19] The Plaintiff’s request for an Order granting class counsel leave to refile the identical action against the Defendant but with a different proposed class representative is denied. There is no motion by the Plaintiff before the court seeking that relief and the Defendant opposes such relief.

Disposition

[20] The Defendant’s motion is granted. The action is dismissed with costs.

[21] In accordance with s. 29.1(2) of the CPA, counsel for the Plaintiff shall forthwith:

a. publish a notice indicating that this proceeding has been dismissed, together with a copy of this order to be issued, on its website; and

b. send a copy of a notice indicating that this proceeding has been dismissed, together with a copy of this order, to every putative class member who has contacted the firm to express an interest in the proceeding.

[22] The costs of the notice above shall be borne by the Plaintiff’s counsel, pursuant to s. 29.1(4) of the CPA.

[23] If the parties cannot agree on costs, they may file written submissions not exceeding three pages, exclusive of their respective bills of costs, with my office. The Defendant shall file its costs submissions within 15 days of the release of this decision. The cost submissions of the Plaintiff shall be filed within 10 days thereafter.

Marie Fortier A.J. Associate Justice Fortier Date: May 30, 2023

[1] See Smarter and Stronger Justice Act, 2020, c. 11, Sched. 4, s. 35. [2] Bourque v Insight Productions, 2022 ONSC 174 at para 7 [Bourque]; D’Haene v BMW Canada Inc., 2022 ONSC 5973 at para 66 [D’Haene]. [3] Bourque at para 13; D’Haene at para 67. [4] See Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [5] Bourque at para 13; the Rules at r.1.03(1); Lamarche v Pacific Telescope Corp., 2022 ONSC 2553 at para 12 [Lamarche]; St. Louis v Canadian National Railway Company, 2022 ONSC 2556 at para 16 [St. Louis]. [6] Lamarche at para 13. [7] Lamarche at para 15; Bourque at paras 13-14. [8] Lamarche at para 24. [9] Lamarche at paras 21-22.