drug which had serious side effects. The defendants delivered a statement of
defence in 2001. Seventeen years after it was commenced, the action had not yet
advanced to the certification stage. The plaintiff sought leave under s. 2 of the
Class Proceedings Act, 1992, S.O. 1992, c. 6 to file a certification motion. The
defendants brought a motion for an order dismissing the action for delay.
Held, the motion for leave should be dismissed; the defendants’ motion should
Where, as here, leave of the court is required and no specific test for granting
leave is set out in the legislation or rules, the onus is on the plaintiff to establish
that the granting of leave is in the interests of justice having regard to the competing
interests at play. That a plaintiff has not proceeded diligently within the time
frames provided may lead to an inference that the plaintiff’s interest in having the
matter determined on the merits is disingenuous. It is therefore incumbent upon
a plaintiff seeking leave to satisfy the court that the delay has either not been
unreasonable having regard to the nature of the case, or that there is a reasonable
excuse for it.
The delay in this case was inordinate, and the plaintiff had not offered a reasonable
explanation for most of it. While his medical condition may have prevented him
from actively pursuing the litigation for approximately 30 months, and while some
additional delay was appropriate to attempt to retain counsel with expertise, there
remained over a decade of delay for which no reasonable explanation was provided.
Given the length of the delay, there was a strong presumption of prejudice to the
defendants. 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
defendant because it failed to preserve documents or to question witnesses before
they became unavailable.
Dismissal for delay did not preclude a subsequent class proceeding by another
Cases referred to
1688782 Ontario Inc. v. Maple Leaf Foods Inc.,  O.J. No. 5614, 2016 ONSC
3368 (S.C.J.); Coulson v. Citigroup Global Markets Canada Inc.,  O.J. No.
717, 2012 ONCA 108, 16 C.P.C. (7th) 1, 288 O.A.C. 355; Faris v. Eftimovski, 
O.J. No. 2551, 2013 ONCA 360, 42 C.P.C. (7th) 258, 363 D.L.R. (4th) 111, 87 E. T.R.
(3d) 204, 306 O.A.C. 264, 228 A.C. W.S. (3d) 89; Kherani v. Bank of Montreal, 
O.J. No. 1623, 2012 ONSC 2230, 26 C.P.C. (7th) 195, 215 A.C. W.S. (3d) 306 (S.C.J.);
Labelle v. Canada Border Services Agency,  O.J. No. 1166, 2016 ONCA 187,
346 O.A.C. 155, 264 A.C.W.S. (3d) 86; Lalani v. Reeves,  O.J. No. 397, 2016
ONSC 424, 90 C.P.C. (7th) 404, 262 A.C.W.S. (3d) 855 (S.C.J.); Langenecker v.
Sauvé,  O.J. No. 5777, 2011 ONCA 803, 286 O.A.C. 268; Naylor v. Coloplast
Canada Corp.,  O.J. No. 923, 2016 ONSC 1294, 87 C.P.C. (7th) 409,
264 A.C.W.S. (3d) 59 (S.C.J.); Pardhan v. Bank of Montreal,  O.J. No. 1629,
2012 ONSC 2229, 26 C.P.C. (7th) 99, 96 C.C.L.T. (3d) 173, 215 A.C.W.S. (3d)
26 (S.C.J.); Sickinger v. Krek (2016), 132 O.R. (3d) 548,  O.J. No. 3092, 2016
ONCA 459, 350 O.A.C. 210, 267 A.C. W.S. (3d) 601; Wallace v. Crate’s Marine Sales
Ltd.,  O.J. No. 4606, 2014 ONCA 671
Statutes referred to
Canadian Charter of Rights and Freedoms
Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 2, 28, 29(4), 35
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.]