Bourque v. Insight: First Class Proceeding to be dismissed for delay under the new s. 29.1 of the amended Class Proceedings Act

Pursuant to ss. 29.1 and 39(2) of the amended Ontario Class Proceedings Act[1] (CPA), any existing proposed class proceeding that was commenced prior to the CPA coming into force had one year to meet certain criteria. If those criteria were not met by October 1, 2021, dismissal became mandatory.[2]

In Bourque v. Insight Productions Ltd. et al (“Bourque”)[3], the Ontario Superior Court of Justice had its first occasion to dismiss an action for delay pursuant to the new s. 29.1.

Section 29.1(1) provides that the court “shall” dismiss a proposed class proceeding unless by one-year after the action was commenced:

1. the plaintiff has filed a final and complete motion record in the motion for certification;
2. the parties have agreed in writing to a timetable for service of the plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding, and have filed the timetable with the court;
3. the court has established a timetable for service of the plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding; or
4. any other steps, occurrences or circumstances specified by the regulations have taken place.[4]