Ontario Court of Appeal Changes the Test Under Rule 24.01—The Passage of Time is Prejudicial

January 06, 2025

Written By Alex Payne and Adam Walji

In Barbiero v Pollack, 2024 ONCA 904 (Barbiero) the Court of Appeal for Ontario upheld the motion judge’s dismissal of a class proceeding for delay under Rule 24.01 of the Rules of Civil Procedure. The plaintiff had not set down the action for trial for over 20 years, which was found to be inordinate and inexcusable delay.

Barbiero is notable for two reasons. First, the three-judge panel of the Court effectively reversed a prior decision of another three-judge panel of the Court regarding Rule 24.01 in Langenecker v Sauvé, 2011 ONCA 803 (Langenecker). The Court held that the Langenecker approach, which held that the passage of time established only a rebuttable presumption of prejudice, “is out of step with the contemporary needs of the Ontario civil court system” and that the passage of time, on its own, may constitute sufficient prejudice to dismiss an action for delay. 

Second, the interplay between Ontario’s 15-year ultimate limitation period and the suspension of limitation periods under section 28 of the Class Proceedings Act, 1992 remains unclear. Over a decade ago in Coulson v Citigroup Global Markets Canada Inc., 2012 ONCA 108 the Court expressed “grave doubts” that the ultimate limitation period would resume retroactive to the date of suspension, but left the determination of that issue to a future case requiring its resolution.

The Court in Barbiero again expressly left open whether the dismissal of a class proceeding for delay would result in the 15-year ultimate limitation period resuming retroactive to the date of suspension. If the ultimate limitation period resumes retroactively to the date of suspension, any subsequent proceeding arising out of the facts underlying Barbiero would be limitations barred. If it does not, a new proposed class action arising out of the facts underlying Barbiero could potentially be filed with a different proposed representative plaintiff, effectively restarting the litigation.

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• Rule 24.01 permits a defendant to move to have an action dismissed for delay where the plaintiff has failed to, among other things, set the action down for trial within six months following the close of pleadings. Rule 24.01 applies to class proceedings by operation of section 35 of the Class Proceeding Act, 1992.
• In finding that the representative plaintiff’s delay was inordinate, the Court emphasized the Registrar’s obligation under Rule 48.14(1)1 to dismiss an action for delay where it has not been set down for trial or terminated by the fifth anniversary of the action’s commencement. The Court also upheld the motion judge’s finding that the defendant suffered actual prejudice because he could not test a product sample which had been seized but later lost by Health Canada.
• The Court stressed that the party that initiates a claim bears the burden of moving the proceeding to its final determination: “the consequences of any dilatory regard for the pace of litigation falls on the initiating litigant, absent resistance from a defendant to proceed to a final disposition on the merits.”

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