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LIMITATION OF ACTIONS - Extension, interruption, suspension and inapplicability

Wednesday, November 27, 2019 @ 7:54 AM  


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Motion by the plaintiff to continue an action and join co-plaintiffs. The plaintiff’s motion to certify an action as a class proceeding was dismissed. She moved to continue the action and join about 200 co-plaintiffs who were putative class members. The proposed statement of claim provided no material facts or particulars about the individual claims of the proposed co-plaintiffs. The defendants objected to the joinder and argued that the limitation periods resumed running when the certification motion was dismissed.

HELD: Motion allowed in part. After a certification motion was dismissed, limitation periods remained suspended until the defendant moved to have the class action dismissed without an adjudication on the merits. Until then, the proposed class action was still active. That conclusion was a consequence of the plain meaning of s. 28 of the Class Proceedings Act, 1992, read in the context of the whole Act and most particularly s. 29. The court on such motion had the jurisdiction to determine when the limitation period would resume. The plaintiff could apply under s. 7 to join co-plaintiffs in a continued action. The test for joinder was the test under the Rules of Civil Procedure. A s. 7 motion transitioned a proposed class action into a proceeding governed by the Rules. The s. 7 motion was dismissed without prejudice because there were insufficient material facts pleaded to determine whether the test was satisfied.

Green v. Hospital for Sick Children, [2019] O.J. No. 5037, Ontario Superior Court of Justice, P.M. Perell J., October 2, 2019. Digest No. TLD-November252019007