When can a class action be dismissed for delay in Ontario?
Market Insight 13 February 2023 13 February 2023
The Ontario Superior Court of Justice makes it clear that a class action must be dismissed for delay if a representative plaintiff does not meet certain legal requirements within a year from the start date of a proceeding.
On July 18, 2022, the Ontario Superior Court of Justice rendered its decision in Westgate vs. WestJet Airlines Ltd. on the mandatory dismissal for delay of a class action pursuant to the amendments brought to the Class Proceedings Act, 1992 (the “Act”) on October 1, 2020, by the Smarter and Stronger Justice Act.
More particularly, Section 29.1 of the Act lists the steps that need to be taken within one year from the first day of the proceeding—this generally corresponds to the date on which the associated statement of claim is submitted—to prevent the Court from dismissing a class action for delay. Within this period, either (i) the representative plaintiff must have filed a final motion record, (ii) the parties must have agreed in writing to a timetable for the service of the representative plaintiff’s motion record (or for other steps required to advance the proceeding) and have provided the timetable to the Court, or (iii) the Court must have established such a timetable. Moreover, other steps, occurrences or circumstances might be necessary according to some regulations.
The plaintiff Michael Westgate—a former employee of the defendant WestJet Airlines —filed a statement of claim on May 15, 2020. Acting as a representative, Westgate sought to commence a class action on the basis that WestJet had violated employment contracts and the Canada Labour Code.
On April 11, 2022, WestJet requested the Court to dismiss the class action on the grounds that the plaintiff had not taken the necessary steps to keep the action active—a motion to which the plaintiff remained unopposed.
The Court noted that the parties had not reached a standstill agreement, that no certification motion had been delivered within the one-year period as per Section 29.1 of the Act and that no timetable had been agreed to by the parties. The Court indicated that since the amendments to provisions of the Act came into force on October 1, 2020—which was after the plaintiff had filed his statement of claim—, this date represented the starting point of the one-year period for the plaintiff to satisfy the conditions set out in Section 29.1.
Therefore, the plaintiff had until October 1, 2021, to fulfill the conditions for the class action to be carried out, which he failed to do. While several communications regarding the replacement of the plaintiff as a representative and the possibility for the parties to attempt mediation were exchanged between the plaintiff, the plaintiff’s counsel and the defendant’s counsel up until January 29, 2021, the Court noted that the class action became inactive thereafter. In addition, the plaintiff’s attorney-client relationship came to an end, and he did not attend the case management conference held on May 30, 2022.
As a result, the Court granted WestJet its motion to dismiss on the basis that the plaintiff had failed to fulfill the conditions of Section 29.1 of the Act.