Better late than never? Ontario Court of Appeal updates Langenecker test for dismissing class actions for delay

In the recent decision of Barbiero,¹ the Ontario Court of Appeal rejected a plaintiff’s attempt to set aside the dismissal of her 21-year-old certified class action by the Ontario Superior Court of Justice. 

Writing for a unanimous court, Brown J.A. provided new guidance regarding the legal principles governing motions to dismiss class actions (and civil proceedings generally) for delay in Ontario. 

Background 

This $100 million class action involved claims against a physician relating to the unlawful and unauthorized use of liquid silicone in dermatology treatments provided to the class members. 

The plaintiff had commenced her class action in February 2003. It was certified on consent in December 2003. Some discoveries took place in 2004 and 2005. In 2012, the parties held an unsuccessful one-day mediation. In 2019, the plaintiff indicated she wished to arrange for product testing. 

In September 2022, the defendant moved to dismiss the proceeding for delay. 

The motion judge’s decision

Applying the “settled law” in Langenecker v Sauvé,² a 2011 Court of Appeal decision, the motion judge held, in lengthy reasons,³ that the three-part Langenecker test had been satisfied by the defendant: (i) the plaintiff’s 21-year delay was inordinate; (ii) the delay was “inexcusable” as it had not been explained; and (iii) the plaintiff had failed to rebut the strong presumption of prejudice given the “substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.”⁴

The motion judge rejected the plaintiff’s arguments that the court should not dismiss a certified class action for delay because “there is no precedent to do so” and because class actions are subject to a robust case management process that could be used to address the defendant’s concerns about the pace of the lawsuit.⁵ In doing so, the motion judge noted section 35 of Ontario’s Class Proceedings Act is clear that the Rules of Civil Procedure, and supporting caselaw regarding delay, apply equally to class actions.⁶

Finally, the motion judge declined to engage with the plaintiff’s argument that there would be no practical effect to a dismissal because a new representative plaintiff could bring a new proposed class action as limitation periods are suspended under s. 28(3) of the Act upon the commencement of a class action. The motion judge held that this was hypothetical and could be addressed if a new class action arises.⁷ 

The Court of Appeal’s decision 

The plaintiff appealed, arguing that, among other things, the motion judge had erred by misapplying the governing legal principles from Langenecker regarding when an action should be dismissed for delay. 

The Court of Appeal took this opportunity to scrutinize Langenecker and highlight its shortcomings, stating, “The Langenecker approach to delay is out of step with the contemporary needs of the Ontario civil court system.”⁸ Specifically, the principles summarized in Langenecker, which were drawn from a 1968 Court of Appeal of England and Wales decision, significantly pre-dated the seminal Supreme Court of Canada decision in Hryniak v Mauldin,⁹ which criticized widespread delays in civil proceedings and called for a “culture shift” in the civil justice system to achieve the prompt judicial resolution of legal disputes.¹⁰

Effecting a culture shift, the Court of Appeal explained, requires not only changing the indifference to delay by litigants and their counsel, but also identifying and changing the judge-created rules or interpretations that do not promote the “prompt judicial resolution of legal disputes.”¹¹ With Langenecker in particular, the court took aim at the widely held interpretation that under this approach, delay on its own cannot constitute prejudice sufficient to support the dismissal of an action but rather, can merely cause a presumption of prejudice to be debated and considered along with other factors.¹²

In no uncertain terms, the Court of Appeal discarded that interpretation, stating, “To the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, it should not be followed.”¹³ The court also clearly held that the consequences for dilatory regard for the pace of litigation that arise in all civil proceedings apply equally to actions certified as class proceedings. The fact class action litigants benefit from robust case management (including preferential access to judicial resources) does not exempt class action plaintiffs from the burden of moving a proceeding to its final disposition on the merits.¹⁴

Key takeaways 

The Court of Appeal’s decision in Barbiero marks a turning point for the dismissal of civil actions for delay in Ontario and brings welcomed clarity to class action litigants regarding the principles that govern certified class proceedings in particular. In short, the general Langenecker approach for civil lawsuits applies to certified class actions as well, notwithstanding the robust case management regime in Ontario. In addition, the passage of time itself will now constitute sufficient prejudice to dismiss a class action for delay. 

In light of Barbiero, we anticipate class action defendants in Ontario will increasingly seek to have stalled class proceedings dismissed for delay and many class action plaintiffs will attempt to move their cases forward more promptly in 2025 to avoid becoming the targets of such motions.