Court File and Parties

Court File No.: CV-16-58391 Date: 2024-12-11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Wilfred Davey and Bill Monture Jordan Goldblatt and Jocelyn Howell, counsel for the Plaintiffs Plaintiffs/Responding Parties

- and -

Hazel Hill, Brian Dolittle, Aaron Detlor, Haudenosaunee Development Institute, 2438543 Ontario Inc., Ogwawihita Dedwahsnye Inc., Elvera Garlow David Shiller, counsel for the Defendants Defendants/Moving Parties

HEARD: October 25, 2024

Reasons for Decision on Motion to Dismiss for Delay

The Honourable Justice M.J. Valente

Nature of the Motion

[1] The defendants bring this motion pursuant to ss. 29.1(1) of the Class Proceedings Act, 1992, SO 1992, c.6 (the ‘CPA’) and Rule 24.01 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194, (“the Rules”) to dismiss this proposed class action for delay.

Background of the Action

[2] The proposed class action, commenced on August 15, 2016, involves the interests of the Mohawk, Oneida, Onondaga, Cayuga, Seneca, and Tuscarora peoples otherwise known as the “Six Nations” or “Haudenosaunee Confederacy”. The plaintiffs, Wilfred Davey and Bill Monture, are members of the Haudenosaunee Confederacy.

[3] The defendant, Haudenosaunee Development Institute (‘HDI’), was created in 2007 by the Haudenosaunee Confederacy Chiefs Council (‘HCCC’), the traditional government of the Haudenosaunee Confederacy, to provide proponents of development a means by which to engage with the Haudenosaunee Confederacy in respect of proposed and pending developments affecting the lands of the Haudenosaunee Confederacy. Upon being satisfied that Haudenosaunee interests are adequately addressed in the proposed development, the HCCC may grant its consent to proceed with the development. The HCCC consent may include such conditions as compensation for the infringement of rights or the requirement of employing members of the Haudenosaunee Confederacy.

[4] At a high level, the plaintiffs in their fresh as amended statement of claim allege that HDI and its members had a duty to protect the rights of the members of the Haudenosaunee Confederacy in carrying out HDI’s functions and to ensure that all stakeholders, including the putative class members, were aware and supportive of HDI’s activities. Instead, the plaintiffs allege HDI and its co-defendants leveraged HDI’s position as a representative of the HCCC to enrich themselves at the expense of the Haudenosaunee Confederacy, contrary to their duties and obligations. The plaintiffs claim damages of $50,000,000 for breach of fiduciary duty, breach of contract, breach of trust, fraudulent misrepresentation, negligent misrepresentation, unjust enrichment, and civil conspiracy, as well as exemplary, aggravated and punitive damages together with a mareva injunction.

Steps Taken in this Action

[5] I now review the evidence on this motion as it relates to the steps taken in this action.

[6] The plaintiffs commenced this proceeding on August 15, 2016. The defendants delivered their statement of defence on October 11, 2016. On November 2, 2016, the plaintiffs brought a motion seeking both a mareva injunction over the defendants’ assets and a norwich order to compel production of certain of the defendants’ account information (collectively, the ‘Mareva/Norwich Motion’). The Mareva/Norwich Motion was adjourned on consent on three separate occasions to February 23, 2017, and in the meantime, cross-examinations were completed.

[7] On February 23, 2017, the plaintiffs sought a fourth adjournment of the Mareva/Norwich Motion. The defendants opposed the adjournment request. Parayeski J. granted the plaintiffs’ adjournment request to the long motions list for the week of April 10, 2017, peremptory to the plaintiffs, at which time the court would hear both the Mareva/Norwich Motion and the plaintiffs’ motion for certification. Parayeski J. also ordered the plaintiffs to deliver their certification motion materials on or before March 8, 2017.

[8] On March 9, 2017, the plaintiffs delivered their motion record in support of the certification of the class proceeding to which the defendants responded with their delivered record on April 4, 2017.

[9] On April 11, 2017, the plaintiffs sought a further adjournment of the Mareva/Norwich Motion and an adjournment of the certification motion, both of which were opposed by the defendants and denied by the court. The plaintiffs’ motions remained on the long motions running list.

[10] On April 13, 2017, after receiving the defendants’ factum on the certification motion, the plaintiffs delivered a supplementary motion record, including both an amended notice of motion and an amended amended notice of motion which withdrew some of its plead causes of action and sought to add new causes of action despite not having amended its statement of claim.

[11] On April 26, 2017, the matter came before Goodman J. Upon consideration of the defendants’ opposition to the plaintiffs’ further adjournment request, the court determined that the matter “must be dealt with by a designated class proceedings judge” and that cross-examinations were required with respect to the certification motion. The court adjourned the matter sine die and directed the lawyers to contact the Regional Senior Judge’s (RSJ) office to arrange for the assignment of a class proceedings judge and hearing dates.

[12] In the meantime, the plaintiffs were in the process of retaining new counsel.

[13] On May 24, 2017, Lococo J. advised the parties that he had been appointed as the designated class action judge and asked the parties to contact his office to arrange a conference call to discuss scheduling once the plaintiffs’ new legal counsel had been confirmed. On August 17, 2017, the plaintiffs delivered a notice of change of lawyer appointing the plaintiffs’ current counsel.

[14] On September 8, 2017, new plaintiffs’ counsel requested that defence counsel provide copies of all orders and endorsements issued in the proceedings to which request defence counsel complied within seven days.

[15] On October 6 and 20, 2017, respectively, the plaintiffs delivered a fresh as amended notice of motion to certify the class proceeding and a fresh as amended statement of claim. On November 10, 2017 the defendants advised that they were not prepared to consent to either amendment.

[16] On December 18, 2017, the plaintiffs contacted the court to arrange a scheduling case conference with respect to the plaintiffs’ motion to seek leave to amend the statement of claim. The conference was scheduled for January 25, 2018 but rescheduled to January 30, 2018 at the court’s request.

[17] On January 30th, 2018, Lococo J. set out the procedure for the plaintiffs to follow for the hearing of their motion for leave to amend the statement of claim. The plaintiffs delivered their motion materials on February 27, 2018 pursuant to the court’s direction. The motion for leave to amend was scheduled to be heard, and was heard, on May 25, 2018.

[18] On September 12, 2018, Lococo J. issued his reasons for granting the plaintiffs leave to issue their fresh as amended statement of claim. The plaintiffs served their fresh as amended claim on October 12, 2018, to which the defendants responded with their amended statement of defence on April 4, 2019.

[19] On November 26, 2019, defence counsel advised counsel for the plaintiffs that he had instructions to bring a motion to dismiss the action for delay. On January 10, 2020, the court scheduled the dismissal motion for hearing before Lococo J. on May 29, 2020, and advised the parties to file their materials “well advance of the date”.

[20] No motion materials were delivered by either party. In early May 2020, the defendants vacated the May 29, 2020 motion date sine die with the consent of the plaintiffs in light of the COVID pandemic.

[21] On October 8, 2021, defence counsel wrote to plaintiffs’ counsel seeking to reschedule the dismissal motion. Having not received a response from plaintiffs’ counsel, on November 4, 2021, defence counsel again wrote to opposing counsel to seek agreement on a schedule and a date for the argument of the dismissal motion. At that time, plaintiffs’ counsel requested a copy of the defence motion materials that had yet to be delivered.

[22] On June 28, 2022, defence counsel communicated with the court seeking to reschedule the motion for dismissed for delay. Plaintiffs’ counsel responded by advising that the plaintiffs also wished to schedule a date for the certification motion, having been ready to proceed, and requested a scheduling case conference for that motion. The parties were subsequently advised that Lococo J. was no longer sitting and on August 2, 2022 defence counsel was requested by the court to provide its dismissal motion materials to the RSJ.

[23] On August 26, 2022, defence counsel delivered to the RSJ a draft notice of motion together with the pleadings and advised that the motion materials themselves were nearing completion.

[24] On August 31, 2022, the court advised that Broad J. was appointed as the designated class proceedings judge and his office would be in contact with the parties to arrange a conference call to discuss the matter.

[25] After defence counsel followed up with the court on January 11, 2023, the court offered January and March dates for the requested case conference. Because plaintiffs’ counsel was unavailable on the proposed dates, the case conference was set for March 10, 2023 but ultimately rescheduled to April 14, 2023 to accommodate a last-minute change in defence counsel’s availability.

[26] On April 14, 2023, Broad J. set a timetable for both the defendant’s dismissal motion and the plaintiffs’ motion to impose a timetable for the certification motion. The court’s April 14, 2023, timetable is not in the record but based on the affidavit of plaintiffs’ counsel, Jeffrey Kaufman, sworn June 14, 2023 (‘the Kaufman Affidavit’) and the transcript of the cross examination of defendant, Aaron Detlor, dated April 16, 2024, I am able to determine that the defendants were directed to deliver their motion materials on or before April 30, 2023 and that no hearing dates were prescribed in the timetable for either the dismissal motion or the plaintiffs’ motion for a timetable for their certification motion.

[27] On April 25, 2023, the defendants delivered their motion record in support of the dismissal motion which was followed by the cross-examinations of Messer Kaufman and Detlor on February 26, 2024 and April 16, 2024 respectively.

[28] On October 25, 2024, the defendant’s dismissal motion came before me for hearing.

[29] The plaintiffs never brought back on the Mareva/Norwich Motion or their motion for certification of the class proceeding.

Position of the Parties

[30] The defendants submit that the plaintiffs cannot establish that on or before October 1, 2021 (the ‘Anniversary Date’) any one of the steps required to save the putative class action from a mandatory dismissal pursuant to s. 29.1 of the CPA was satisfied. Specifically, the defendants submit that the plaintiffs failed to file by the Anniversary Date a final and complete certification motion record. The motion records filed by the plaintiffs prior to the Anniversary Date do not include the fresh as amended statement of claim seeking to certify the new causes of caution plead in the amended claim. Additionally, the parties never filed with the court a timetable for service of the plaintiffs’ certification motion record or for completion of one or more other steps required to advance the proceeding.

[31] The defendants also assert that at no time did the court establish a timetable for service of the plaintiffs’ certification motion or for completion of one or more other steps required to advance the proceeding. None of the court’s orders or endorsements issued prior to October 1, 2021 satisfy this third saving provision of s. 29.1. The Order of Parayeski J., dated February 23, 2017, resulted only in the filing of a certification record in respect of the claims originally advanced in the unamended statement of claim. The amendments sanctioned by the court in the fresh as amended statement of claim radically changed the claims, and for that reason, the February 23, 2017, order is of no assistance to the plaintiffs.

[32] The plaintiffs’ position is that it delivered a final and complete certification motion record well before the Anniversary Date. The plaintiffs also submit that whether the certification record is otherwise “sufficient” should be ultimately determined on the certification motion and not on this motion before the court. While the plaintiffs concede that the parties did not file with the court the timetable stipulated by s. 29.1 of the CPA, nevertheless the February 23, 2017 order of Parayeski J. established a timetable for service of the plaintiffs’ motion for certification and scheduled the certification motion date. Furthermore, the April 26, 2017, endorsement of Goodman J. identified and directed steps that had to be taken to advance the proceeding, including the assignment of a designated class proceedings judge, and thereby, is a form of timetable sufficient to satisfy the requirements of s. 29.1(1)(c) of the CPA.

[33] In addition, and in the alternative, the defendants rely on Rule 24 in support of their motion to dismiss this proceeding. The defendants submit that not only is the plaintiffs’ delay in advancing their claim intentional conduct that demonstrates a distain or disrespect for the court process, but the delay is inordinate, inexcusable and gives rise to a substantial risk that a fair trial will not be possible because of the delay.

[34] The defendants submit that inordinance of the delay is measured by reference to the length of the time from the commencement of the proceeding to the motion to dismiss and rely on precedent decisions where a delay of 5 years or more have been found to be unreasonable. The moving parties also assert that the plaintiffs’ explanations for the delay are neither reasonable nor persuasive. Finally, the defendants’ submission is that because the plaintiffs’ delay is both inordinate and excusable, there is a presumption of prejudice that the plaintiffs have failed to rebut.

[35] Apart from there being no evidence on the part of the plaintiffs or their counsel of a demonstrated disdain or disrespect for the court process, the plaintiffs submit that the relevant period of delay is to be measured from the commencement of the action to when the defendants signaled their intention to bring the dismissal motion, or at the latest, when the court first scheduled the dismissal motion. They submit there is no inordinate delay on their part within this timeframe. In any event, the plaintiffs submit that they always had an intention to move for certification but were frustrated in their efforts because the defendants did not agree to move forward with the certification motion pending adjudication of the dismissal motion. The plaintiffs further submit that they have provided additional reasonable and cogent explanations for any periods of delay up to the defendants’ initiation of their dismissal motion and thereafter. Finally, the plaintiffs’ position is that because there is no inordinate or inexcusable delay, no presumption of prejudice exists, and in any event, the defendants have failed to proffer any evidence of prejudice to their ability to have a fair trial of the issues by reason of the plaintiffs’ alleged delay.

Guiding Principles – Section 29.1 of the CPA

[36] The statutory language of s. 29.1 of the CPA is clear. If none of the requirements enumerated in s. 29.1 are satisfied by the one-year anniversary date, the proposed class action shall be dismissed for delay. The requirements are disjunctive.

[37] The current provisions of the CPA, including s. 29.1, came into force on October 1, 2020. Pursuant to the transition provisions, actions commenced before October 1, 2020 are deemed to have been commenced on that date for purposes of the one-year dismissal date. For these actions, unless there was compliance with one of ss. 29.1 (1) (a), (b), (c) or (d) by October 1, 2021, the dismissal provision in s. 29.1 would apply.

[38] If none of the requirements enumerated in s. 29.1 of the CPA are met by the one-year anniversary date, the court has no residual discretion to order anything other than dismissal of the proceeding (see: St. Louis v. Canadian National Railway Company, 2022 ONSC 2556, (“St. Louis”), at para 17, leave to appeal dismissed 2022 ONSC 5016).

[39] In Bourque v. Insight Productions, 2022, ONSC 174 (“Bourque”), the court was urged by the plaintiff to exercise discretion under s. 29.1. In response to that submission, Belobaba J. stated that:

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 a glacial speed – then it is to everyone’s advantage (both putative class members and defendants) that the mandatory dismissal provision be interpreted and applied” as written (at para 19).

[40] Belobaba J. also observed:

“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” (see: Bourque, at para 15).

[41] In rejecting the application of s. 12, Belobaba J. explained that although the court may have “wide-ranging case management powers respecting the conduct of class proceedings”, there is no basis on which the court can override s. 29.1’s mandatory provisions (see: Bourque, at para 17). The approach taken by Belobaba J. is settled law.

[42] Subsections 29.1(b) and 29.1(c) refer respectively to the parties having agreed in writing and the court having established a timetable for service of the representative plaintiffs’ motion record for certification or for completion of one or more other steps required to advance the proceeding.

[43] Rule 1.03 (1) of the Rules, which applies to class proceedings, defines “timetable” as “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”.

[44] In considering the Rule 1.03(1) definition of “timetable”, Belobaba J. stated in Bourque that a “timetable” is “a plan of times at which events are scheduled to take place, especially towards a particular end” (see: Bourque, at para 13). A timetable also requires an undertaking to do something within a specified deadline (see: Lamasche v. Pacific Telescope Corp., 2022 ONSC 2553, at para 15).

[45] What may constitute a “timetable” was specifically addressed in Bourque. There, the plaintiff submitted that a timetable had been established at a case conference by virtue of an agreement between both counsel and the court that she could serve her certification record “when she can” (see: Bourque, at para 10). Based on these facts, Belobaba J. rejected the notion that a timetable had been established. At para 14, the court found:

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 requirement in s. 29.1 and the statutory objective to ‘advance the proceeding’, go ahead and do whatever you want whenever you can”.

[46] In St. Louis, R.D. Gordon J, considered whether a case conference endorsement of October 17, 2017 established a timetable where the court ordered a second case conference to be held before June 30, 2018 to permit the plaintiffs time to undertake an environmental assessment and report to the court on its status. R.D. Gordon, J. found that the 2017 case conference endorsement established a timetable because “[i]t provided for a further event by a specified date” and that the two completed steps (the commencement of an environmental assessment and the second case conference) were required to advance the proceeding in the circumstances of the case (see: St. Louis, at para 20). Although no timetable for the advancement of the plaintiffs’ certification motion “was set or even considered”, the fact that a further “case management conference was necessary to determine whether or how the action would be proceeding” was deemed sufficient to satisfy the requirements of ss. 29.1 (c) (see: St. Louis, at para 23).

[47] Additionally, the court found in St. Louis at para 24 that:

… s. 29(1)(c) does not require the actual advancement of the action or that the parties proceed with scheduled steps. It only requires the court to have established a timetable for a single step required to advance the proceedings. If such a timetable is made but not met, there are other potential remedies such as case management orders, orders for non-compliance under r. 3.0.4 and dismissal for delay that may be pursued.

[48] In Lubus v. Wayland Group Corp., 2022 ONSC 4999 (“Lubus”), leave to appeal granted, 2023 ONSC 239, but appeal settled prior to hearing, Morgan J. agreed that while the goal of s. 29.1 is to ensure that otherwise stagnating class actions move along and that the wording of s. 29.1 is strict, the importance of context in implementing the provisions of s. 29.1 is to be appreciated because “[s]ection 29.1 is not there to catch plaintiffs out” (at para 44).

[49] In Lubus, Morgan J. found that a case conference endorsement directing steps to be taken without the implementation of specific deadlines satisfied the requirements of ss. 29.1(1)(c). The circumstance before Morgan J. were such that the plaintiffs had sought at a case conference a timetable leading to a certification motion but instead were ordered by the court to take certain steps to clarify representation and service issues that had arisen. In those circumstances where the case management judge has identified steps to be taken prior to the certification motion, and those steps can be done in writing “and therefore without a specific hearing date being scheduled”, Morgan J. found that “the court had, in effect, established a form of timetable by directing the next steps to be taken despite not specifying an outside date” (Lubus, at paras 45 and 46).

[50] I agree with and adapt the approaches taken by R.D. Gordon J. and Morgan J. in St. Louis and Lubus respectively with respect to the meaning of “timetable” as situated ss. 29.1(1)(c) of the CPA.

Analysis – Section 29.1 of the CPA

[51] There is no dispute that this proceeding was commenced on August 15, 2016, and therefore, the one-year anniversary date for compliance with the provisions of s. 29.1 is October 1, 2021.

[52] Likewise, the parties agree that should I find that the plaintiffs have failed to comply with one of the four requirements of s. 291, I must dismiss the proposed class action. I have no discretion.

[53] Where the positions of the parties diverge is with respect to the plaintiffs’ compliance with s. 29.1. As I have previously referenced, the defendants submit that the plaintiffs have failed to satisfy any of the requirements of the section whereas the plaintiffs maintain that they have met the requirements of ss. 29.1(1) (a) having filed a final and complete certification motion record as well as the requirements of ss. 29.1(1) (c) with this court having established both a timetable for service of the certification motion and for the completion of one or more other steps required to advance the proceedings.

[54] While the defendants concede that the order of Parayeski J., dated February 23, 2017, provides for the delivery of the plaintiffs’ certification motion record by a specified date, and certification motion records were filed in March and April, 2017, the defendants submit the order resulted in the filing of a certification motion record only in respect of the plaintiffs’ original claims and not with respect to the claims advanced in the plaintiffs’ fresh as amended claim which they now seek to certify. For this reason, the plaintiffs’ filed records fail to satisfy ss. 29.1(1)(a)’s requirement that the motion record for certification be “final and complete”. For the same reason the timetable established by the February 23, 2017, order for service of the motion record falls short of meeting the first condition of ss. 29.1(1) (c): the subsection does not contemplate a timetable for service of any certification motion record but rather a final and complete record.

[55] I agree with the defendants’ submission that ss. 29(1)(c) contemplates a timetable for the service of a final and complete certification motion record. This is the only rational interpretation of the subsection given the clear requirement that the record be “final and complete” in the preceding subsection of s. 29.1. I disagree, however, that the plaintiffs’ motion record filed on March 9, 2017 and the supplementary record filed on April 13, 2017 (collectively, the ‘certification records’) are anything other than “final and complete”.

[56] I have reached this conclusion because the evidence of plaintiffs’ counsel is unequivocal that the certification records are final and complete. Plaintiffs’ counsel’s evidence is that the fresh as amended statement of claim does not include any changes to the material facts and does not necessitate revisions to the certification motion records. From the plaintiffs’ standpoint, no additional evidence or amendments are intended or required.

[57] Although the defendants submit that the certification records should be amended, at least to the extent of including the final revision of the statement of claim, in order that the plaintiffs might succeed in certifying all of their proposed causes of action, that decision is not for the defendants to make. Whether the certification records are sufficient to certify each of the putative class’s causes of action will be adjudicated by me as the assigned class proceedings judge on the certification motion. On that occasion, the defendants will be free to challenge the certification of the proposed causes of action based on the certification records as filed.

[58] Otherwise, I agree with the plaintiffs that practically speaking, the defendants’ purported gap in the certification records does not exist. Rules 37.10(1) and 4.08 of the Rules permit the plaintiffs to requisition the fresh as amended statement of claim to be placed before the court at the time of the certification motion for the court’s consideration.

[59] I also find that whereas the certification motion did not proceed in April 2017 as ordered by Parayeski J., this fact does not make it incapable of satisfying the requirements of ss. 29.1(1) (c). As this court held in St. Louis, ss. 29.1(1)(c) “does not require the actual advancement of the action or that the parties proceed with scheduled steps. It only requires the court to have established a timetable for a single step required to advance the proceeding” (see: St. Louis, at para 24).

[60] In the event that I am mistaken that the filed certification records are final and complete as mandated by ss 29.1(1)(a) and that the February 23, 2017 order of this court established a timetable for service of the certification motion record, the order of Goodman J., dated April 26, 2017, identified and directed steps that were required to advance the proceeding, including cross-examination on the certification motion and the designation by the RSJ of a class proceeding judge.

[61] Like the environmental assessment in St. Louis, this step was required on a practical basis for the plaintiffs to advance the proceeding. In making his order, Goodman J. established “a form of timetable by directing the next steps to be taken” as recognized by Morgan J. in Lubus (at para 46). Even though Goodman J. did not set an explicit deadline date for the designation of a class proceedings judge, the court in Lubus recognizes a “form of order” that need not do so to satisfy the requirements of the ss. 29.1(1)(c). As R.D. Gordon J. explained in St. Louis, where steps are identified that need to be taken prior to the scheduling of the certification motion and those steps can be taken without a specific date being imposed, “one can nevertheless say that a schedule has in effect been set for those necessary steps” (see: St. Louis, at para 45).

[62] Based on the facts as I find them, these circumstances did arise and were satisfied by the April 2017 endorsement of Goodman J., thereby complying with the requirements of the alternative condition of ss. 29.1(1)(c) of the CPA.

Guiding Principles – Rule 24.01 of the Rules

[63] Rule 24.01(1) provides that a defendant who is not in default under the Rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed to serve the statement of claim on all of the defendants within the prescribe time, to have noted in default any defendant who has failed to deliver a statement of defence, to set the action down for trial within six months after the close of pleadings or to move for leave to restore to a trial list an action that has been struck off the trial list, within 30 days after the action was struck off. Although not specifically addressed by either party, there was apparent agreement on the motion that the plaintiff had failed in at least one of the four stipulated criteria.

[64] Dismissing an action for delay is a severe remedy because it denies a plaintiff the adjudication of their claim on its merits. In D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd, 2007 ONCA 695, at para 34, the Court of Appeal stated the preference that matters be decided on their merits:

Expeditious justice must be balanced with the public interest in having disputes determined on their merits. Where, despite the delay, the defendant would not be unfairly prejudiced should the matter proceed for resolution on the merits, according the plaintiff an indulgence is generally favoured.

[65] The Court of Appeal has also pointed out, however, sometimes dismissal for delay on the part of the plaintiff is the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to the defendant (see: Langenecker v. Sauve, 2011 ONCA 803, (‘Langenecker’) at para 3; Avdeeva v. Khankaldiyan, 2021 ONSC 2681 (‘Avdeeva’, at para 20)).

[66] Having said that, the Court of Appeal also cautions that the adjudication of a motion to dismiss pursuant to Rule 24.01(1) requires a careful balancing between efficiency and deciding disputes on their merits:

… On the other hand, the Rules of Civil Procedure need to be enforced in a way that ensures timely and efficient justice, in the interests of plaintiffs, defendants, and society in general. On the other hand, society in general, and the parties, have an interest in resolution of disputes on their merits and in the availability of flexibility to avoid potentially draconian results, by providing the opportunity for parties to offer a reasonable explanation for delay when it takes them beyond established timelines.” (Kara v. Arnold, 2014 ONCA 871 at para 9).

[67] In the event that there was any question as to whether the Rule 24.01 dismissal for delay provisions apply to class actions, the decision of this court in Barbiero v. Pollack, 2024 ONSC 1548 (“Barbiero”) settles the issue in the affirmative. At para 158 of Barbiero, Glustien J. found:

… if a representative plaintiff in a certified class action fails to move the action forward, resulting in a delay that meets the Langenecker test [discussed below], then the court has jurisdiction to dismiss the certified class action for delay. While such circumstances may be extremely rare, the remedy of dismissal for delay should remain available.

[68] In Langenecker, the Court of Appeal summarized the well-established test under Rule 24.01 for the dismissal of an action for delay. Speaking for the Court, Doherty J.A. stated that an action should not be dismissed for delay unless:

a) the default is intentional and the conduct of the plaintiff or their counsel demonstrates a disdain or disrespect for the court process (at para 6); or

b) the plaintiff or their counsel are responsible for delay that is both inordinate and inexcusable that gives rise to a substantial risk that a fair trial of the issues in the litigation would not be possible (at para 7).

[69] The test for dismissal for delay pursuant to Rule 24.01 is disjunctive. The defendant, as the moving party, has the onus of establishing either branch of the test (see: Cardillo v. Willowdale Contracting et al, 2020 ONSC 2193 (‘Cardillo’), at para 33).

[70] The first type of case that attracts dismissal of an action for delay, where the delay is both intentional and contumelious, “speaks to a delay that is at least reckless, or perhaps wilful. It is the sort of default where there is no reasonable explanation for it, and where there is an element of disrespect to the court” (see: Cardillo, at para 34). In Langenecker, the Court of Appeal described these types of cases as rare, usually involving the breach of one or more court orders (at para 6).

[71] The second type of case that will justify an order dismissing a proceeding for delay has been more recently expressed by the Court of Appeal as an action in which the delay is “inordinate, inexcusable and prejudicial to the defendants in that it gives rise to a substantial risk that a fair trial of the issues will not be possible (see: Ticchiarelli v. Ticchiarelli, 2017 ONCA 1 ((at para 12), (‘Ticchiarelli’)).

[72] This second type of case has three characteristics: the delay must be (1) inordinate, (2) inexcusable, and (3) such that it gives rise to a substantial risk that a fair trial of the issues will not be possible because of the delay. In Smith v. Armstrong et al, 2018 ONSC 2435 (‘Smith’), at para 22, R.D. Gordon R.S.J. provided an instructive summary of the jurisprudence for evaluating the three requirements of the second branch of the test under Rule 24.01:

Inordinate: A court will measure the length of time from the commencement of the proceeding to a motion to dismiss to determine if the delay in (sic) inordinate: Langenecker, at para 8: Ali, v. Fruci, 2014 ONCA 596, 122 O.R. (3d) 517, at para. 11 [Ticchiarelli at para 15]. When considering the delay, the court should remember that some cases will move slower than others because of the issues raised, the parties involved, and/or the nature of the action: Langenecker, at para 8.

Inexcusable: A court should consider the reasons offered for the delay and whether those reasons provide an adequate explanation, with regard to the credibility of the explanations, the explanations for individual parts of the delay, the overall delay, and the effect of the explanations considered as a whole: Langenecker, at paras. 9 – 10 [Ticchiarelli, at para 16].

Prejudice: the third factor considers the prejudice caused by the delay to a defendant’s ability to put forward its case for adjudication on the merits: Langenecker at para. 11 [Ticchiarelli, at para 28]. An inordinate delay will give its rise to a presumption of prejudice and unless rebutted, that presumption may result in the action being dismissed: Armstrong v. McCall (2006), 213 O.A.C. 229 (C.A.), at para 11. A defendant may also suffer, and demonstrate, case-specific prejudice: Langenecker, at para 12.

[73] While the plaintiffs do not dispute the point of commencement of measuring the delay, they submit the Court of Appeal in Langenecker was equivocal with respect to its end date. They argue that because the court did not specifically define the end date (i.e. “a motion to dismiss”), it is open to this court to interpret the end date of the delay period as any one of the date on which the defendants gave notice of their intention to bring the dismissal motion, the date on which the court scheduled the defendants’ motion, or the date on which the notice to dismiss is filed.

[74] I disagree. The plain meaning of the Court of Appeal’s direction in Langenecker is that the delay period is to be measured from the commencement of the proceeding to the date on which the motion to dismiss is heard. This interpretation of Doherty J.A.’s direction was confirmed by the Court of Appeal in Ali v. Fruci, 2014 ONCA 596 (‘Ali’) and adopted by this court without exception based on the decisions provided by the parties for my consideration (see for example: Guillermo v. Akpata, 2024 ONSC 3839 at para 18; Ardeera v. Khankaldiyan, 2021 ONSC 2681, at para 23; Kelly v. Weins Canada One. Operating as Don Valley North Toyota, 2024 ONSC 445, at para 26).

[75] There is no set amount of time that will make a delay qualify as “inordinate”. In Langenecker, the Court of Appeal found a 15-year delay to be inordinate. Courts have found that delays of between 8 and 11 years to be inordinate. See for example: Berg v. Robbins, [2009] O.J. No. 6160 (Div Ct.) and Bourque where this court found a 7-year delay in proceeding with the action to be inordinate. Finally, in Ali, the Court of Appeal upheld the motion judge’s finding that a 5-year delay from the commencement of the action was inordinate, although the court described it as a “close case” (at para 11).

[76] More generally, however, and as made clear in both Langenecker and Bourque, the determination of whether the delay is inordinate is contextual in light of the reality that litigation moves at different speeds depending on the nature of the case (see: Cardillo, at para 40).

[77] In the event that the plaintiffs’ delay is found to be inordinate, whether the delay is inexcusable requires an examination of the reasons for it and whether a “reasonable and cogent” or “sensible and persuasive” explanation has been provided (see: Langenecker at paras 9-10, Ticchiarelli; at para 16). The court is also to consider not only the adequacy of the explanations offered for the individual parts of the delay but also the overall delay and the effect of the explanations considered as a whole to determine if the delay could be excused, at least to the extent that an order dismissing the action would be inappropriate (see: Langenecker at para 9-10., Ticchiarelli, at para 16).

[78] Finally, in assessing delay, R.D. Gordon R.S.J. stated in Smith that:

…it is appropriate to examine the actions of the defendant. It is not appropriate to dismiss the action for delay that has been caused on large part by the actions of the defendants. Similarly, it is not appropriate to dismiss an action for delay when a defendant has, by its actions, led the plaintiff to reasonably believe that the delay is not an issue.

[79] Neither situation existed based on the facts in Smith and the plaintiff’s claim was dismissed where some 17 years had passed since the class action was commenced and had yet advanced to certification.

Analysis – Rule 24.01

[80] While the defendants concede that cases of intentional conduct demonstrating an intentional disrespect or distain for the court are rare, the moving parties rely on the Divisional Court’s decision in Berg v. Robbins, for the proposition that absent an explanation from the plaintiff for the delay, it is to be presumed that the delay was intentional (at para 13). In the circumstances of this case, where neither plaintiff delivered an affidavit in explanation of their delayed prosecution of the class proceeding, the defendants urge this court to infer that the delay is indeed intentional.

[81] I decline to do so. I find that this is not the first type of case described by Doherty J.A. in Langenecker that attracts an order of dismissal for delay. Plaintiffs’ counsel provided an explanation for the delay both in his affidavit and on cross examination. While I may not accept the entirety of his explanation, the justification of counsel, as described later in these Reasons, is sufficient for this court to conclude that the delay was neither intentional nor contumelious.

[82] Otherwise the defendants have the onus of establishing the first branch of the Langenecker test and they have failed to offer any evidence for me to conclude that the plaintiffs’ delay is intentional and contumelious.

[83] Given that the Langenecker test is disjunctive, the question then becomes is the delay inordinate? The plaintiff is responsible for moving an action forward; this responsibility is not for the defendant (see: Prescott v. Barbon, 2018 ONCA 504). On the other hand, the reality of our civil justice system in this province is that most matters do not proceed at a speedy pace. Some litigation, because of the number and complexity of issues as well as the number and nature of the parties involved, will move more slowly compared to the average case (see: Langenecker, at para 8). In my view, many class action proceedings are among those cases that progress slowly.

[84] Even accepting that litigation generally advances at a slow pace and that class action proceedings, like this litigation, can move more slowly than most cases, I have concluded that more than 8 years from the commencement of these class proceedings to the motion to dismiss constitutes inordinate delay. The plaintiffs delivered their certification motion record on March 9, 2017, some 7 months after the commencement of these proceedings but the certification motion is no closer to being heard today than when it was first delivered. In these circumstances, a delay of this length is unreasonable.

[85] Having found the delay to be inordinate, I must address whether the plaintiffs have discharged their evidentiary burden to provide a reasonable explanation for the delay? With one exception relating to a delay period of some 7 months, I am satisfied after considering the plaintiffs’ explanations for individual parts of the delay, the overall delay, the effect of the explanations considered as a whole and the credibility of those explanations, the plaintiffs’ explanations are both cogent and persuasive. I have come to this conclusion for the following reasons:

a) From February 2016 to April 2017, the plaintiff sought and obtained adjournments of the Mareva/Norwich Motion from the court over the objections on the defendants. From April 2017 to May 2017, the parties awaited the appointment of a class proceedings judge pursuant to the April 26, 2017 endorsement of Goodman J.

b) Soon after the appointment of Lococo J. as the designated class proceedings justice, on June 2, 2017, the plaintiffs advised of a change in counsel. The plaintiffs’ current counsel subsequently delivered a notice of change of lawyer in less than 3 months and thereafter reasonably required, in my view, some time to acquaint himself with the case which resulted in the delivery to the defendants on October 20, 2017 of the proposed amendments to the statement of claim.

c) The plaintiffs explain their inactivity in pushing the litigation forward from April 2019 to November 2019 on the basis that their attention and that of their counsel’s were focused on two other matters: injunction proceedings initiated by Hydro One to complete work on Haudenosaunee lands and a Small Claims Court action initiated by the plaintiffs’ former counsel for the collection of unpaid fees. Given the dearth of supporting evidence to explain the delay during this period, I do not accept the plaintiffs’ explanation as either reasonable or sensible. On the other hand, it does not escape me, however, that this period of inexcusable delay is not more than a mere 7 months.

d) By far the most significant period of plaintiff delay is that time between November 26, 2019 when the defendants advised of their intention to bring this motion to dismiss and October 25, 2024 when the motion was heard. The plaintiffs explain this period of inactivity on the basis that the defendants delayed in delivering their dismissal motion and the motion itself kept them from proceeding with the certification motion.

[86] I accept the plaintiffs’ position that the dismissal motion prevented them from seeking adjudication of the certification motion. The uncontroverted affidavit evidence of plaintiffs’ counsel, Jeffrey Kaufman, is that the defendants would not, and did not, agree to move forward with the certification motion while they sought to have the proceeding dismissed in its entirety for delay. On cross examination Mr. Kaufman unequivocally confirmed the defence position with respect to the order in which the motions were to be heard.

[87] While the defendants’ position is logical, it is only reasonable if they proceeded with due diligence to have the dismissal motion heard. I find that they did not. Certainly, the defendants cannot be faulted for not pushing forward with their motion while the courts were shuttered because of the COVID-19 pandemic from mid March, 2020 to the end of May, 2020 (see: Bourque, at para 18 (i)). However, following the adjournment of the dismissal motion from its originally scheduled May 20, 2020, due in part to the defendants’ failure to file any motion materials, there are unexplainable periods of defence delay. For example:

i) From April 29, 2020, when the defendants sought the agreement of the plaintiffs to adjourn the pending dismissal motion, to October 8, 2021, when the defendants reached out to the plaintiffs to reschedule the dismissal motion, there is no effort on the part of the defence to move forward with their motion.

ii) It is not until June 28, 2022, some 8 months later, that the defendants reached out to the court to seek its assistance to reschedule the dismissal motion.

iii) From August 31, 2022 when the parties were advised that Broad J. had been appointed as class proceedings judge, to January 11, 2023, the defence took no steps to have its motion heard.

iv) Despite the November 4, 2021 request of the plaintiffs and the August 26, 2022 request of the court for the defendants to deliver their dismissal motion materials, the defendants’ motion record was not served until April 25, 2023, more than three years after contracting the court to schedule the motion.

[88] Perhaps the only explanation for the defendants’ delay in prosecuting the dismissal motion is found in the testimony of defendant, Aaron Detler. On his cross examination, Mr. Detler, a lawyer himself, described the decision of when and how to bring the motion for dismissal as strategic and conceded that much of the prejudice the defendants claim for delay could have been mitigated if the dismissal motion was heard at the earliest opportunity after November 26, 2020.

[89] Based on these circumstances, I find that it would be inappropriate to dismiss this class proceeding for delay that has been caused in large part by the defendants’ actions particularly when the plaintiffs advised the court in June, 2022, that they were ready to proceed with the certification motion having served their record.

[90] Because I have found the inordinate delay to be excusable, there is no presumption of prejudice. Additionally, and in any event, I find that the defendants have not established that they are actually prejudiced by the delayed prosecution of this proposed class proceeding within the meaning stipulated by the Court of Appeal in Langenecker.

[91] The defendants’ evidence of prejudice centers on the alleged prejudice that they have suffered as a result of the plaintiffs’ allegations in these proceedings. The evidence proffered by the defendants is that the plaintiffs’ action furthers the narrative that HDI is not a legitimate representative of Haudenosaunee interests and thereby prejudices HDI’s ability to carry out its mandate.

[92] While the alleged prejudice caused by the plaintiffs’ challenge of the legitimacy of HDI’s role in representing and safeguarding the interests of the Haudenosaunee Confederacy may be a relevant issue in these proceedings, the prejudice described by the defendants is irrelevant to the second branch of the Langenecker test for dismissal pursuant to Rule 24.01. In Langenecker, the Court of Appeal could not be clearer that the question of prejudice is directed at prejudice “caused by the delay to the defence’s ability to put its case forward for adjudication on the merits” (at para 11).

[93] In its 2015 decision, in H.B. Fuller Company v. Rogers (Rogers Law Office), 2015 ONCA 173, the Court of Appeal held it as a reversible error for the motions judge not to link the issue of prejudice to whether a fair trial is still possible (at para 44).

[94] There is no evidence that the delay jeopardizes in any way the defence’s ability to have a fair trial or to put forward its case for adjudication on the merits. Therefore, I conclude that notwithstanding the delay, which I have found to be excusable, a fair trial is still possible.

Disposition

[95] For the above reasons, the defendant’s motion is dismissed.

[96] There is the issue of costs of this motion as well as the issue of the costs of the abandoned Mareva/Norwich Motion which by agreement of the parties I am to determine in the event that they are unable to do so. Also outstanding is the plaintiffs’ motion for the imposition of a timetable for the hearing of the certification motion.

Costs and the Plaintiffs’ Motion

[97] In the unfortunate event that the parties are unable to resolve any of these outstanding matters, I would direct them to contact the Hamilton Civil trial coordinator’s office to arrange a 9:30 a.m. case conference before me to discuss the procedure and manner in which any one or more of these outstanding issues is or are to be resolved.

Justice M. Valente Released: December 11, 2024