Even in class actions, there comes a time when enough is enough and the civil justice system will no longer tolerate an inordinate and inexplicable delay. In Smith v Armstrong et al, 2018 ONSC 2435, R.S.J. Gordon granted the federal defendants’ motion to dismiss a proposed class action for delay and found the plaintiff’s delay to be inordinate where the litigation had not advanced to the certification stage after 17 years.
In January 2000, the plaintiff commenced litigation against the Attorney General of Canada, a former Canadian Forces physician, and Hoffman-La Roche, a pharmaceutical company, seeking Charter damages arising from the alleged forced use of Mefloquine, an anti-malaria medication, by Canadian Forces members deployed to Somalia in 1992. Following delivery by the federal defendants of their Statement of Defence in 2001, no substantive steps were taken in the litigation until November 2016, when the plaintiff served a Notice of Change of Solicitors and proposed a timetable for the proceeding. The evidence before the court demonstrated that prior to November of 2016, defendants' counsel had frequently contacted plaintiff's counsel expressing concerns about the delay and seeking updates. Throughout, plaintiff's counsel expressed an intention to proceed with certification and in 2006, undertook to proceed with a certification motion within months. That undertaking was not fulfilled.
In 2016, the plaintiff moved for leave to proceed with a certification motion (having long passed the 90-day time period for doing so as set out in section 2 of the Class Proceedings Act) and the federal defendants moved to dismiss the proceeding for delay pursuant to Rule 24.01.
The court reviewed the case law dealing with the issue of leave under s. 2 of the Act, and noted that none of the cases had articulated a specific test for leave. The court concluded that it would be appropriate to determine the matter in the interests of justice, noting that the onus would be on the plaintiff to establish that the granting of leave is in the interests of justice having regard to the competing interests at play, including the plaintiff’s interest in having his claim adjudicated on its merits, and the defendant’s interest in having the matter heard within a reasonable period of time so as not to be unfairly prejudiced in providing its defence.
The court also reviewed the law concerning dismissal for delay and specifically its application to a proposed class action, noting that section 29(4) of the Act specifically mentions dismissal for delay and that section 35 of the Act incorporates by reference the Rules, thereby allowing the defendant to bring a Rule 24.01 motion to dismiss the proposed class action for delay. In dealing with this proposed class action, the court adopted the usual test for dismissal for delay.
The plaintiff offered several reasons for the delay, which he said, taken together, constituted a reasonable explanation: (i) the nascent state of class actions and Charter jurisprudence at the time the action was commenced; (ii) his difficulty in locating an expert to establish causation between the use of the drug and long-term neuropsychiatric symptoms; (iii) various challenges he experienced with his physical and mental health; and (iv) efforts by plaintiff’s counsel to transfer the file to new counsel or to obtain additional resources or expertise.
In dismissing the plaintiff's motion for leave to proceed with the certification motion and allowing the defendants' motion to dismiss the action for delay, the court found that while the plaintiff’s medical condition and counsel’s efforts to transfer the file or obtain additional resources may have justified some delay, there remained well over a decade of delay for which no reasonable explanation had been provided. The court further noted that the actions of the federal defendants in no way contributed to the delay, noting that the federal defendants expressed their concern with the delay and continued to inquire regularly about who would be acting for the plaintiff.
Furthermore, the court found that given the length of the delay, there was a reasonably strong presumption of prejudice to the federal defendants. The court noted that where prejudice is presumed as a result of inordinate delay, it is no answer for the plaintiff to say that responsibility for the prejudice rests with the defendants because they failed to preserve documents they ought to have preserved, or failed to question witnesses that were once available. To do so would effectively reverse the onus that is normally on the plaintiff to rebut the presumption of prejudice. This is to be contrasted with actual prejudice, which, when alleged by a defendant, cannot arise from the defendant’s own action or inaction when the litigation was current. The court found that the federal defendants could not be faulted for failing to locate and preserve documents or question witnesses in this case as it remained unclear whether the defendants were facing two plaintiffs acting individually or a class action.
Ultimately, the court concluded that it was neither desirable nor appropriate for a defendant to face a lawsuit that has "languished" for more than 16 years with minimal progress.
For plaintiff-side counsel, if you fail to take steps to advance a class proceeding, you do so at your peril. The court has made clear that it will grant plaintiffs only so much leeway with respect to delay and will expect robust evidence to explain why the delay is justified. It is also noteworthy that incapacity or illness of a representative plaintiff will likely not be a compelling explanation. If such incapacity is alleged, a court will expect counsel to consider the appointment of a Litigation Guardian or substitute representative. The court in the present case inferred from counsel’s failure to do so that the plaintiff was, in fact, able to provide instructions.
For defence counsel, it is equally important to be vigilant in taking reasonable steps to advance the litigation and to document those steps. Well-documented and frequent inquiries made by defendants’ counsel were important in demonstrating not only that the defendants were prepared to move the matter along, but also that the defendants had clearly expressed concerns about the accumulating delay. In this case, various responses from plaintiff's counsel committing to proceed with certification were also seen to undermine some of the assertions by the plaintiff that it was not possible to proceed in a timely manner. Furthermore, even where there is a presumption of prejudice to the defendant, the defendant would be well-advised to lead evidence of actual prejudice.
In its decision, the court also considered the impact of its decision on other potential class members and whether they would be precluded from bringing an action arising from the same set of facts. In so doing, Justice Smith commented on the tolling provision in section 28 of the Act, which suspends limitation periods applicable to putative class members for the duration of the class proceeding, and its applicability to new actions. He concluded that the dismissal for delay of this action did not preclude any individual actions nor did it preclude a subsequent class proceeding by another representative plaintiff. The court did not decide whether such a proceeding, based on events which occurred almost 30 years ago, would be barred by the expiry of the ultimate 15-year limitation period. In light of this finding, it would appear that prejudice to other potential class members is not a legitimate factor which can be raised in defending a motion to dismiss. Conversely, dismissal of a potential class proceeding for delay does not mean that the defendant has certainty that the matter has concluded.
Left for another day, and another judge, is the question of how far into the future putative class members will be permitted to commence a new class proceeding arising from the same set of facts and what impact, if any, the ultimate limitation period will have.
About the authors
Elizabeth Richards is General Counsel and Mary Roberts is Counsel for the Civil Litigation Section | Section du contentieux des affaires civiles, National Litigation Sector | Secteur national du contentieux. Department of Justice | Ministère de la Justice.
* The views expressed in this article are those of the authors and do not represent those of the Department of Justice or the Government of Canada.