I'm never gonna leave you
I never gonna leave
Holdin' on, ten years gone

  • Jimmy Page and Robert Plant

About 10 years after issuing her claim, the representative plaintiff filed a certification application. Prior to that, she had taken no meaningful steps to advance her proposed class taction alleging that fluoroquinolone, a generic antibiotic, caused tendon injuries.

The defendants responded with a Rule 4-44 motion to dismiss for delay. Justice Klatt granted that motion in Allison v Janssen-Ortho, et. al. 2023 SKKB 283. Allison is now the fourth proposed class action to be dismissed pursuant to Rule 4-44 in Saskatchewan. Also see Bovier v Crary Company, 2023 SKKB 21, Huard v The Winning Combination Inc., 2022 SKCA 130, and McKinnon v Red Lily Energy Corp., unreported (31 July 2014) (SKQB).

The governing Rule 4-44 authorities establish a three part framework:

  • Is the delay inordinate?
  • Is the delay excusable?
  • Is it in the interests of justice to allow the claim to continue despite inordinate and inexcusable delay?

Inordinate delay

Justice Klatt agreed that "whether a delay is inordinate will depend on the nature of the litigation" but disagreed with the plaintiff who effectively argued that class actions are a special type of action that require leniency. Instead, Justice Klatt concluded "the fact this is a proposed class action is not a reason alone to excuse long periods of little or no activity." Additionally, the Class Actions Act directs that the certification motion should be heard within 90 days of the delivery of the statement of defence or the deadline for the defence. The Court agreed this is honoured more in the breach than the observance but also noted "the obvious intent of the Saskatchewan legislators in enacting it was to ensure that proposed class actions do not languish."

Apart from periods of time where the plaintiff sought to cure service defects in order to meet the requirements for the appointment of a case management judge, no actions of substance had taken place until the 10 year mark of the action. These "shallow breaths of activity" over 10 years led Justice Klatt to find the delay to be inordinate.

Inexcusable delay

The plaintiff offered a novel excuse to explain the delay in filing certification materials. She said it was necessary for further research to be completed and to wait for "the science to settle" before proceeding with the case. However, the plaintiff's evidence did not support the argument as advanced. It revealed further studies had been conducted over the years. However, there was no clarity in the evidence why it was necessary or justifiable for the plaintiff to wait many years for further studies.

Interests of justice

The last plank of the analysis allows the court to consider a number of non-exhaustive factors in determining whether "there is a compelling 'interests of justice' reason for the case to proceed on its merits." In Huard, Chief Justice Leurer noted putative class actions may present special considerations within the interests of justice analysis. This could include the class members' knowledge of the action, its delay and what actual reliance had been placed on the proposed class action.

The plaintiff could not point to any evidence filed in response to the 4-44 motion but instead relied on affidavits filed by putative class members on the certification application. However, those affidavits did not sufficiently rise above the general statements typically found in any certification motion about the perceived importance of proceeding by way of class action versus individually. This evidence did not sufficiently demonstrate "their knowledge of the proposed class action, the actual reliance on the proposed class action or whether they were aware of any delay in prosecuting the claim."

For this, and other reasons, there was no compelling interest of justice reason to allow the action to proceed in light of the inordinate and inexcusable delay that had occurred.

Takeaway

There may be some unique aspects of class actions that may raise special considerations for certain aspects of some Rule 4-44 applications. However, the crux of the analysis similarly applies whether it be a proposed class action or a regular action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.