Sohaib Mohammad Habib

The appellant, Peter Dimakos, appealed the dismissal of his s.11(b) Charter application related to allegations under the Building Code Act.

The Ontario Court of Justice upheld the trial justice’s decision that the application was not properly before the court due to failure to properly serve the Attorney General, emphasizing the mandatory nature of proper service.

The court found no palpable and overriding error in the trial justice’s procedural ruling and declined to order a new trial under s.120(1) of the Provincial Offences Act despite acknowledging alternative procedural approaches.

The defendants brought a motion to dismiss a proposed class proceeding for delay pursuant to section 29.1 of the Class Proceedings Act, 1992.

They argued that the plaintiff had not filed a complete certification motion record or established a timetable within the first anniversary of the proceeding's commencement.

The plaintiff contended that extensive interlocutory proceedings related to a Mareva injunction, including timetables for affidavit exchange and cross-examinations, constituted "steps required to advance the proceeding." The court adopted a functional interpretation of section 29.1, finding that the injunction-related steps, which involved a deep dive into the merits and evidence relevant to certification, did indeed advance the proceeding.

Consequently, the defendants' motion to dismiss for delay was dismissed.