Delay In Class Actions "Saps Public Confidence" - Saskatchewan Court Of Appeal

• Law Firm: Fasken
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Court Procedure, Class Actions
• Author: Mr Paul Martin, Pavel Sergeyev and Daniella Murynka
• Published date: 17 January 2023

"Delay in civil proceedings is apt to cause prejudice to the parties," the Saskatchewan Court of Appeal wrote recently. ¹ "Unnecessary delay inevitably saps public confidence in the judicial process," it continued, upholding the decision of the Court of Queen's Bench to dismiss a class action for delay. In dismissing the appeal, the court commented pointedly on the policy importance of avoiding delay in the class actions context:

Delay in civil proceedings tends to have deleterious effects on the parties. Witnesses die, become unavailable, or simply forget things. Documents disappear. Costs soar. However, the consequences of delay go beyond the parties to an action. [.] [U]nnecessary delay inevitably saps public confidence in the judicial process as a method for dispute resolution. This is particularly true in the context of a proposed class action which, by its very nature, seeks to advance the interests of people other than the named plaintiffs who are in control of the prosecution of the action. ²

This case - Huard v. The Winning Combination Inc. - sends a powerful signal to class action participants: the rules of procedure can provide tools to address the inordinate and inexcusable delay. This signal is particularly welcome in Ontario, where recent legislative amendments intended to address delay have been weakened through judicial interpretation. Class action defendants and their counsel are reminded by Huard that delay is a pervasive issue in class proceedings, but also that existing and long-standing tools of civil procedure can provide a remedy.

In 2019, the Law Commission of Ontario reported that delay was a "significant issue" in class action litigation, causing potential harm to both class members and defendants. ³ Accordingly, the report recommended that Ontario's Class Proceedings Act ⁴ be amended to provide for "administrative dismissal" where a plaintiff did not file its certification materials within a year, or otherwise in accordance with a timetable. ⁵

The Ontario Class Proceedings Act was then amended to include new subsection 29.1(1), ⁶ which provides that the court "shall" dismiss a class proceeding for delay unless, within a year of the action being commenced, (a) a certification motion record is filed, (b) the parties have filed a timetable for service of the certification motion record or another step to advance the proceeding, (c) the court has established a timetable for service of the certification motion record or another step...