Ontario: the dismissal of a certification motion and the suspension of time

In R.G. v. The Hospital for Sick Children, the court held that after the dismissal of a motion to certify an action as a class proceeding, the limitation period applicable to the plaintiff’s claim remains suspended until the occurrence of one of the circumstances set out in s. 28 of the Class Proceedings Act, 1992:

[57]           In my opinion, in circumstances where a motion to certify an action as a class proceeding is dismissed and none of the other enumerated circumstances under s. 28 applies, a motion by the defendant is required in order to deactivate the suspension of the running of limitation periods. Until such a motion is brought, not having been formally dismissed, the proposed class action is still active albeit it has not been certified. This conclusion is a consequence of the plain meaning of section 28 of the Class Proceedings Act, 1992 read in the context of the whole Act and most particularly in the context of s. 29 of the Act.

[58]           This conclusion may come as a surprise to the class action bar because up to and including the case at bar, defendants have usually not found it necessary to address whether or not the limitation period has resumed because putative class members rarely advance actions if a certification motion is dismissed. The issue of whether the unadvanced claims are statute-barred is academic. Further, the absence of a flurry of individual actions may be explained, in part, by the circumstance that putative class members may not even be aware that there was a proposed class action. There is no provision in the Act that requires publication of a dismissal of a certification motion, and so the putative class members may not know that they can no longer rely on a class action as the means to access justice.

[59]           In practical effect, however, the dismissal of the certification motion is akin to a discontinuance of a proceeding commenced under the Class Proceedings Act, but pursuant to s. 29 of the Act, a proceeding cannot be discontinued without the approval of the court on such terms as the court considers appropriate.

[60]           The case law about s. 29 reveals that before approving an abandonment or discontinuance of a proceeding commenced under the Act, a court will consider what prejudice, if any, the putative class members might suffer by a discontinuance of the action.[10] Where there is a discontinuance, the terms of the court approval may include requiring the plaintiff to give notice to the putative class members that they can no longer rely on a possible class proceeding as the means to obtain access to justice and that they may need to bring individual actions. The terms of the order may provide an operative date for the discontinuance to come into effect in order to allow the putative class members to obtain legal advice and to commence an action if so advised.

[61]           In my opinion, analyzing s.28 of the Class Proceedings Act along with s. 29 of the Act reveals that a similar approach to that used when a proposed class action is discontinued is available when a proposed class action fails to be certified. If a putative class member’s cause of action is expressly mentioned in the statement of claim of a proposed class action, then that cause of action is suspended until the suspension is lifted by certain events, including a determination that dismisses the asserted cause of action without a determination of its merits.

[62]           In my opinion, should a defendant bring a motion to have the class proceeding dismissed without an adjudication on the merits, the motion would be akin to a discontinuance of the action, which also entails a termination of the proceeding without an adjudication on the merits. However, until the court rules on the terms of the discontinuance or dismissal without an adjudication on the merits, the suspension of the limitation period continues.

[63]           This interpretation of the operation of the Class Proceedings Act, 1992 is fair to both plaintiffs and defendants. In the normal course, the putative class members are given notice if the certification motion succeeds, and the above approach would give them notice when the certification motion fails. For the putative class members, who have been waiting to learn whether they have the option of a class proceeding rather than commencing their own action, they will be given notice of the outcome of the certification motion, and then they may act as they may be advised.