Ontario Superior Court of Justice

Court File No.: CV-16-68728
Date: 2025/06/24

Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6

BETWEEN:
Anupam Kakkar, Plaintiff/Responding Party
– and –
Her Majesty the Queen in Right of Ontario, Ontario Works, City of Ottawa, Defendants/Moving Party

Appearances:
Eric Letts, for the Plaintiff
Antonin I. Pribetic, for Her Majesty the Queen in Right of Ontario
Matthieu C. Charron, for the City of Ottawa and Ontario Works

Heard: May 14, 2025

Decision on Motion to Dismiss for Delay
Robert Smith

Overview

[1] The Defendants, hereinafter referred to as the “Crown”, seek an order dismissing this Class Proceeding pursuant to s. 29.1 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”) and, in the alternative, pursuant to Rule 24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”).

[2] The Plaintiff has failed to advance this proceeding beyond the pleadings stage for more than eight years after being ordered to deliver an amended statement of claim and amended certification motion materials.

[3] On May 27, 2016, the Plaintiff commenced this proposed Class Action against the Defendants: the Crown, Ontario Works Ottawa, and the City of Ottawa. The proposed class was to be comprised of “all parents and their children and spouses who were the subject of a child support order that was assigned by order or agreement to the Crown, the Minister of Community and Social Services, or its Delivery Agents, such as the City of Ottawa, or its other agents or assignees”. The Statement of Claim was served on the Crown by the Plaintiff’s counsel via email on November 17, 2016.

[4] While the service was invalid, the Crown confirmed service on November 23, 2016. On December 5, 2016, the Crown provided a reminder to the Plaintiff’s counsel to serve a Notice of Constitutional Question on the Attorney General of Canada as declaratory relief was sought by the Plaintiff regarding the constitutionality of the Federal Child Support Guidelines.

[5] A case conference was arranged before me on June 12, 2017. At the case conference, the parties agreed to a timetable requiring the Plaintiff to take the following steps:

(a) to deliver a Notice of Constitutional Question to the Attorney General of Canada and the Attorney General of Ontario as well as an amended Statement of Claim by June 30, 2017;

(b) to deliver the Plaintiff’s motion record for certification by July 31, 2017; and

(c) requiring the parties to attend a further case conference on September 11, 2017 to discuss a timetable for delivery of the Defendants’ materials, cross-examinations on affidavits and other steps to be taken in advance of the certification motion, as well as for the purposes of scheduling any other preliminary motions that may be required.

[6] On July 31, 2017, the Plaintiff’s counsel sought the Crown’s consent to deliver a further Amended Statement of Claim. He also sought the Crown’s consent to consolidate the Plaintiff’s proposed Class Action with a separate Family Court Application between private parties in relation to child support in the Ontario Court of Justice.

[7] The case management conference scheduled for September 11, 2017 was adjourned to October 27 due to the Court’s unavailability. On October 11, 2017, the Plaintiff served his certification motion record, 72 days after the deadline agreed to at the case management conference held on June 12, 2017.

[8] On October 27, 2017, the Plaintiff served the Notice of Constitutional Question on the Attorney General of Canada and the Attorney General of Ontario approximately four months after the deadline agreed to at the case management conference held on June 12, 2017.

[9] At the case management conference held on October 27, 2017, Crown counsel raised a number of procedural issues and pointed out numerous pleading deficiencies. As a result, I ordered the Plaintiff to deliver a further amended statement of claim and amended certification motion materials to be delivered by November 27, 2018. I also directed that a further case conference be held on January 12, 2018. However, the Plaintiff’s counsel has failed to deliver an amended statement of claim or the amended certification motion materials by the timeline established at the case management conference or, in fact, to this date.

[10] On January 11, 2018, the Plaintiff’s counsel requested an adjournment of the case management conference scheduled for January 12, 2018. Plaintiff’s counsel indicated that his client was applying for financial assistance from the Class Proceedings Fund and had an upcoming court date for a related family proceeding on April 4, 2018. Counsel for the Crown advised the Plaintiff that she would only agree to the adjournment on the condition that the case management conference be adjourned to a fixed date in April 2018. Plaintiff’s counsel failed to respond, and a further case management conference was not scheduled by the Plaintiff.

[11] Nearly four years later, on November 16, 2021, the Plaintiff’s counsel emailed the Defendants advising that he wanted to move the case forward and had written to the court for available dates. However, no date was obtained. After this email, the Crown did not receive any further correspondence from Plaintiff’s counsel.

[12] On October 8, 2024, the Court Registrar dismissed the action for delay under Rule 48.14 of the Rules. The dismissal order was issued in error as Rule 48.14 does not apply to Class Proceedings.

[13] On January 27, 2025, Crown counsel wrote to the Ottawa Trial Coordinator to request a case management conference before me, and to bring a motion under s. 29.1 of the CPA for a dismissal for delay. On January 29, 2025, the court set aside the Rule 48.14 dismissal order.

[14] The parties attended a case management conference on March 3, 2025 where a timetable for the Crown’s motion to dismiss for delay was established, which included dates for both parties to file their respective materials and the date for the Crown’s motion to dismiss was set on May 14, 2025.

[15] The Crown filed and served its motion to dismiss for delay within the time period established, but the Plaintiff did not serve or file any responding materials to the motion to dismiss by May 14, 2025. Counsel for the Plaintiff attended the motion on May 14, 2025, and requested that if an order dismissing the Plaintiff’s claim was to be made, that it provide for a 30-day period for the Plaintiff to retain different counsel. I refused to add this condition to any order because the Plaintiff was entitled to retain different counsel at any time he desired; therefore, it was unnecessary to include this term in the order.

[16] Plaintiff’s counsel did not bring a motion to be removed as solicitor of record in this proceeding by the May 14, 2025 motion day and as such, he remains the Plaintiff’s counsel of record.

[17] Without any prior notice to the Crown or to the court, Plaintiff’s counsel then advised that he was seeking an adjournment of the motion. The Plaintiff did not provide any affidavit evidence to justify the granting of an adjournment at this late date. Plaintiff’s counsel verbally advised the court that his client was in a hospital in India, but he did not provide any details of the nature of any illness or whether communications with the Plaintiff were possible. Because of the lack of any evidence to support the granting of an adjournment, the lack of any advance notice to opposing counsel or to the court, the Plaintiff’s failure to follow a clear timetable set on March 3, 2025 without any steps being taken by Plaintiff’s counsel to file responding materials, to bring a motion to be removed as solicitor of record, or to request an adjournment with supporting evidence, I denied the Plaintiff’s request for an adjournment.

Should the Plaintiff’s Claim be Dismissed pursuant to Section 29.1 of the CPA?

[18] I have adopted large portions of the Crown’s factum setting out the applicable law because the Plaintiff has not filed any factum or other materials.

[19] Section 29.1 of the CPA states 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. 2020, c. 11, Sched. 4, s. 26; 2021, c. 25, Sched.1, s. 1.

[20] Section 29.1(1) provides that the court shall, on motion, dismiss for delay a proceeding commenced under s. 2 of the CPA, unless, among other facts, the court has established a timetable for the service of the Plaintiff’s certification motion record or the completion of one or more steps required to advance a proceeding.

[21] In Lubus v. Wayland Group Corp., 2022 ONSC 4999, para 42, the court stated as follows:

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 the circumstances to the purpose that the statute seeks to address: Re Rizzo & Rizzo Shoes Ltd., para 27. Adjudication of a delay question necessarily requires a careful consideration of the factual/procedural distinctiveness of the case at bar.

[22] In this case, the Class Proceeding was commenced on May 27, 2016. One year from this date would be May 27, 2017. The Plaintiff served a certification motion record on October 11, 2017; however, it contained several pleading deficiencies. At the case conference held on October 27, 2017, I ordered the Plaintiff to deliver an amended statement of claim and amended certification motion materials by November 27, 2018. The Plaintiff’s counsel has failed to deliver an amended statement of claim or amended certification motion materials by November 27, 2018 as ordered or to this date. This amounts to a delay in providing an amended statement of claim and amended certification motion materials of approximately six and a half years.

[23] As a result, the proposed representative Plaintiff has failed to file a final and complete motion record in the motion for certification for approximately six and a half years. This is well in excess of the first anniversary of when the representative Plaintiff was ordered to deliver final and complete materials for the motion for certification. Section 29.1(1) of the CPA states that the court shall dismiss for delay a proceeding unless the Plaintiff has by the first anniversary, a period of 12 months, filed a final and complete motion record in the motion for certification. The Plaintiff has failed to file a final and complete certification motion record for six and a half years after the date he was ordered to do so.

[24] The Plaintiff has also failed to file and serve an amended statement of claim and certification motion materials within the timetable established at the case conference hearing for over six and a half years. The Plaintiff has failed to advance the proceeding in accordance with the timetable and in accordance with an Order of the court for a period of six and a half years.

[25] The fact that a timetable for the service of the amended pleadings and the amended certification motion materials was established six and a half years ago does not qualify or equate to “steps that were taken to advance the proceeding”. In fact, the Plaintiff has not taken any steps to advance the proceeding for the past six and a half years. I find that it would not serve the interests of the parties, promote judicial efficiency, or achieve the intended purpose of s. 29.1 of the CPA of ensuring that class proceedings move along expeditiously and do not languish or hang in procedurally indefinite limbo to the detriment of the class members and the public at large.

[26] In this case, the Plaintiff did not file responding materials to the motion to dismiss the claim or make arguments opposing the dismissal but rather sought an adjournment, which indicates that the Plaintiff is not seriously attempting to advance this proceeding.

[27] Plaintiff also sought to consolidate this Class Proceeding with a separate Family Court Application which would be procedurally untenable. The Plaintiff has also failed to respond to many communications sent by the Crown which indicates that he was not seriously pursuing this Class Proceeding.

[28] A dismissal of this action would not prejudice putative class members as they could pursue a new Class Proceeding based on the same grounds as those involved in this proceeding because s. 28 of the CPA suspends the limitation period if the class proceeding is dismissed without an adjudication on its merits or if the class proceeding is abandoned or discontinued.

Disposition

[29] For the above reasons, the Class Proceeding is dismissed for delay under s. 29.1 of the CPA.

Robert Smith
Date: June 24, 2025