The Court of Appeal for Ontario has released its first decision squarely interpreting the new “dismissal for delay” provisions in the Ontario Class Proceedings Act (CPA), in Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5.
As we wrote in a post about the lower court decision in Tataryn, section 29.1 of the CPA provides that, on a motion, a court shall dismiss a proposed class action for delay if the plaintiff has not taken certain steps within one year of filing.
The appeal decision in Tataryn focuses on interpreting whether the Court has established a timetable for completion of one or more “steps required to advance the proceeding” (one of the “steps” capable of warding off dismissal for delay under section 29.1(1)(c) of the CPA).
The Court upheld the dismissal of the proposed class action for delay, and provided the following guidance:
- A motion to strike may qualify as a step required to advance the proceeding: The Court rejected the motion judge’s conclusion that the timetabling of a motion to strike could never qualify as a section 29.1 step. To the contrary, the provision should be interpreted to include motions that the CPA treats as “valuable and necessary” pre-certification steps. (As discussed in a prior Osler Update, section 4.1, which was added to the CPA along with section 29.1 in 2020, provides for the pre-certification hearing of dispositive motions or motions that may narrow the issues, including motions to strike.)
- Parties’ conduct may be determinative: However, in the present case, the Court agreed that the proceeding should be dismissed — even though a motion to strike had been timetabled (and decided) and multiple case conferences attended. The Court concluded that the plaintiff’s own conduct had prevented the motion to strike from advancing the proceeding, highlighting that, two years after the motion was decided, the plaintiffs were still contesting a motion seeking their compliance with the Court’s decision (which efforts were ultimately unsuccessful).
- The Court also considered the “long and winding road” of the proceeding, including that the plaintiffs had commenced it in 2018 and delivered seven iterations of the pleading before missing the one-year deadline. The Court noted that obstructionist conduct by a defendant could likewise inform a contextual analysis of section 29.1.
- ‘Phoenix’ litigation is contrary to spirit of section 29.1: The Court also agreed with the motion judge’s refusal to grant a “Phoenix” order (i.e., granting leave to another individual plaintiff to effectively recommence the claim in a new pleading). As discussed in our prior post, the motion judge held that such an order would undermine legislative intent: “[S]ection 29.1 would not address the problem it set out to address if a plaintiff can bring an action, delay it until it gets dismissed under s. 29.1, and then just start a new action as if nothing happened”. The Court agreed with this analysis.
- While the Court reiterated that this was a hypothetical question on the appeal — and noted, as highlighted in our prior post, that one prior decision of the Court has indicated in obiter that a “Phoenix” proceeding may be permissible[1] — it also observed that “arguably it circumvents the spirit of s. 29.1(1)”.
- Overall approach is a contextual, case-by-case analysis: While there is no judicial discretion to waive the one-year deadline if a section 29.1 step has not been taken, the determination of what constitutes a “step required to advance the proceeding” requires a case-by-case analysis that considers the totality of the proceeding.
- Indeed, the Court endorsed the reasoning of a case which reached the opposite result of Tataryn: St. Louis v. Canadian National Railway Company, 2022 ONSC 2556 (leave to appeal refused). In that case, the timetabling of future case management conferences to report on the status of an environmental assessment — which was fundamental to the viability of the contamination claims at the heart of the proceeding — was found to satisfy the requirements of section 29.1.
[1] Tataryn v. Diamond & Diamond Lawyers LLP, 2025 ONCA 5, at paragraph 76, referring to Martin v. Wright Medical Technology Canada Ltd., 2024 ONCA 1, at paragraph 27.
