In Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5, released on Jan. 2, Justice Sarah Pepall rejected arguments that the appellant’s compliance with court directions to deliver a statement of claim and the arrangement of a case conference qualified as a timetable or a step required to advance the proceeding.
“Applying a contextual approach, it could not be said that the appellants had shown that a timetable for completion of one or more other steps required to advance the proceeding had been established,” the judge wrote.
In May 2018, the appellant William Tataryn, who suffered personal injuries in a motor vehicle accident, initiated a class proceeding against the respondent law firm, Diamond & Diamond Lawyers LLP. The class action alleged breaches of fiduciary duties by the law firm related to client referral practices and contingency fee agreements, as well as violations of the Solicitors Act and the CPA.
In January 2023, the respondent’s counsel advised the appellants’ counsel that they had not complied with s. 29.1(1) of the CPA and proposed to bring a motion to that effect.
The appellants served a motion record for certification in May 2023.
Section 29 of the CPA requires a class action plaintiff to complete one of several steps within one year from the day the proceeding was commenced or face dismissal of the proceeding for delay. The provision was introduced in 2020 with the aim of streamlining class action proceedings and reducing delays.
A motion judge found that none of the delay was the fault of the respondent and rejected the appellants’ argument that challenges to a faulty pleading or timetabling motions to strike pleadings amounted to “steps” under s. 29.1(1).
The motion judge noted that s. 29.1(1) requires steps on the way to certification, and not just foundational steps such as a plaintiff issuing a pleading and struggling to salvage it. The motion judge also rejected the appellants’ submissions that the respondent had waived its s. 29.1(1) rights and dismissed the action.
The appellants challenged the decision, arguing that the motion judge erred in finding that they had not complied with s. 29.1(1) and in finding no waiver of s. 29.1(1) by the respondent.
Justice Pepall observed that s. 29.1(1) is to be given a contextual interpretation.
“Not any step would qualify to meet the s. 29.1(1) requirement. On a case-by-case basis, the case management judge would have to consider the totality of the proceeding and whether the completion of the step that was timetabled was required to advance the proceeding,” the judge wrote.
She cited St. Louis v. Canadian National Railway Company, 2022 ONSC 2556, in which the Ontario Superior Court found that a case conference to schedule status reports on an environmental assessment, the results of which could result in the end of the proceeding, amounted to a step required to advance the proceeding.
“It could not be said that this was necessarily a step required for certification, but it was a step required to advance the proceeding,” Justice Pepall wrote, noting that there is some flexibility associated with the interpretation to be given to “completion of one or more steps required to advance the proceeding”.
Justice Pepall noted that there may be cases where a motion to strike a statement of claim amounts to a step required to advance the proceeding, noting that the commencement of a class proceeding is frequently met with numerous attacks on the statement of claim by the defendant.
She observed that obstructionist conduct or conduct designed to delay so as to gain the benefit of the statutory provision may permit a judge, applying a contextual approach, to find that the defendant is precluded from relying on the provision.
The appellants contended that three steps met the requirements of section 29.1(1).
They argued that the motion judge’s May 2020 direction to deliver a statement of claim within 45 days and arrange a case conference for further directions, and the July 2020 case conference itself, where dates were set for exchanging materials and hearing the respondent’s motion to strike, were three required steps that were timetabled.
The court held that neither of the first two steps qualified as a timetable or a step required to advance the proceeding, noting that treating such “inconsequential acts” as meeting the parameters of s. 29.1(1) would “in essence neuter the provision.”
The judge also found that the July 2020 case conference did not meet the requirements of s. 29.1(1).
The court observed that from the commencement of the action to the expiration of the one-year timeframe, the appellants delivered three different notices of application and four different statements of claim.
The judge further noted that the appellant’s own conduct prevented a motion to strike timetabled at the July 2020 case conference from advancing the proceeding.
“Applying a contextual approach, it could not be said that the appellants had shown that a timetable for completion of one or more other steps required to advance the proceeding had been established,” the judge wrote, dismissing this ground of appeal.
The court also rejected the appellant’s arguments that the respondent had waived s. 29.1(1) of the CPA and dismissed the appeal.
Justices Bradley Miller and Darla Wilson concurred in the decision.
Counsel for the respondent, Teodora Obradovic of Fogler, Rubinoff LLP, said that the decision carried precedential value as it was one of the first decisions of the Court of Appeal on the requirements of s. 29.1.
“The Court in the decision makes pretty clear that s. 29.1 isn't intended to be applied mechanically," she told Law360 Canada. "A judge hearing a motion under s. 29.1 is going to have to be open to considering the context of the case before him or her to determine what is a step that's ‘required to advance the proceeding."
She also noted that the court of appeal provided some guidance on what kind of pre-certification steps would be viewed as steps to advance a proceeding.
Milton Davis and Ronald Davis of Fogler, Rubinoff LLP also acted as counsel for the respondent.
Counsel for the appellants were Peter Waldmann and Matthew Armstrong. They were not immediately available for comment.
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