



WARNING

Prohibitions under the
Child, Youth and
    Family Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this
    decision:

Prohibition re identifying child

87(8)
No person shall publish or make public information that has the
    effect of identifying a child who is a witness at or a participant in a hearing
    or the subject of a proceeding, or the childs parent or foster parent or a
    member of the childs family.

Prohibition re identifying person charged

87(9)
The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

Transcript

87(10)
No person except a party or a partys lawyer shall be given a copy
    of a transcript of the hearing, unless the court orders otherwise.



Offences re
    publication

142
    (3)
A person who
    contravenes subsection 87 (8) or 134 (11) (publication of identifying
    information) or an order prohibiting publication made under clause 87 (7) (c)
    or subsection 87 (9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: R.G. v. The Hospital for Sick
    Children, 2020 ONCA 414

DATE: 20200625

DOCKET: C67619 and C67659

Juriansz, Lauwers and Huscroft
    JJ.A.

BETWEEN

R.G.

Plaintiff (Respondent)

and

The Hospital for Sick Children, Gideon Koren

and Joey Gareri

Defendants (Appellants)

Naveen Hassan, Logan Crowell, Kate Crawford and
    Barry Glaspell, for the appellants The Hospital for Sick Children and Joey
    Gareri

Jessica Laham, Darryl Cruz, Gabrielle Schachter,
    Erica Baron and Jessica Firestone, for appellant Gideon Koren

Kirk M. Baert, Adam Tanel and Celeste Poltak,
    for the respondent R.G.

Heard: May 21, 2020 by video conference

On appeal from the order of Justice Paul
    M. Perell of the Superior Court of Justice, dated October 2, 2019, with reasons
    reported at 2019 ONSC 5696.

By the Court:


OVERVIEW

[1]

Following denial of certification of the
    respondents proposed class action, the respondent brought a motion for an
    order continuing her proceeding for approximately 200 individual plaintiffs,
    including unnamed individuals; tolling the limitation periods for those
    plaintiffs; and granting leave to file an amended statement of claim. The
    motion judge declared that the limitation period of all former putative class
    members remained suspended pursuant to s. 28(1) of the
Class Proceedings
    Act 1992
, S.O. 1992, c. 6

(
CPA
), but granted only the respondent representative plaintiffs
    motion to continue her individual action under s. 7 of the
CPA
. Her
    motion in respect of the co-plaintiffs was dismissed without prejudice to her right
    to reapply to join co-plaintiffs on proper material.

[2]

The appellants do not contest the continuation
    of the respondents individual action under s. 7. They argue that the motion
    judge erred in interpreting s. 28(1) and erred, further, in answering a
    hypothetical question concerning the operation of the limitation period for the
    proposed co-plaintiffs.

[3]

We dismiss the appeal, for the reasons that
    follow.

[4]

We are mindful of the consequence of this
    decision. It means, as a practical matter, that following the denial of
    certification of a class proceeding, the limitation period remains suspended
    for an indefinite time period. In our view, suspension for an indefinite time
    period is not necessary to promote the purpose of the
CPA
and
    undermines the purpose of the
Limitations Act, 2002
, S.O. 2002, c. 24
.
Be that as it
    may, it is not a problem that this court can address. It is a matter for the Legislature
    to address, should it choose to do so.

BACKGROUND

[5]

The facts in this matter are not in dispute and
    may be set out briefly.

[6]

The respondent was the representative plaintiff
    in a proposed class action alleging that the appellants were negligent in
    operating the Motherisk Drug Testing Laboratory, which screened hair samples
    for the presence of drugs and alcohol and delivered false positive results.
    Test results were used for various purposes, including the treatment of
    patients, criminal proceedings, and family law disputes. The respondents
    motion for certification of the class action was dismissed:
R.G. v. The
    Hospital for Sick Children
, 2017 ONSC 6545. Her appeal to the Divisional
    Court was dismissed:
R.G. v. The Hospital for Sick Children
, 2018 ONSC
    7058, and this court denied leave to appeal. Leave to appeal to the Supreme
    Court was not sought and the time for seeking leave has now elapsed.

The motion

[7]

The respondent brought a motion for an order: 1)
    declaring that the putative class members limitation periods continued to be
    suspended; 2) permitting her to continue the proceeding as a multi-plaintiff
    action pursuant to s. 7 of the
CPA
; and 3) granting leave to file an
    amended statement of claim to join approximately 200 individual claimants to
    her claim. Numerous proposed co-plaintiffs on the motion were already included
    in other actions that were ongoing, and counsel for the respondent refused to
    confirm that he represented the proposed co-plaintiffs, despite the request
    that he do so.

The legislation

[8]

Section 7 of the
CPA
governs the
    continuation of proceedings following a refusal to certify a proceeding as a
    class proceeding:

7 Where the court refuses to
    certify a proceeding as a class proceeding, the court may permit the proceeding
    to continue as one or more proceedings between different parties and, for the
    purpose, the court may,

(a) order the addition, deletion
    or substitution of parties;

(b) order the amendment of the
    pleadings or notice of application; and

(c) make any further order that
    it considers appropriate.

[9]

Section 28 of the
CPA
governs the
    suspension and resumption of limitation periods concerning causes of action
    asserted in class proceedings. It provides as follows:

28 (1) Subject to subsection (2),
    any limitation period applicable to a cause of action asserted in a class
    proceeding is suspended in favour of a class member on the commencement of the
    class proceeding and resumes running against the class member when,

(a) the member opts out of the
    class proceeding;

(b) an amendment that has the
    effect of excluding the member from the class is made to the certification
    order;

(c) a decertification order is made
    under section 10;

(d) the class proceeding is
    dismissed without an adjudication on the merits;

(e) the class proceeding is
    abandoned or discontinued with the approval of the court; or

(f) the class proceeding is
    settled with the approval of the court, unless the settlement provides
    otherwise.

(2) Where there is a right of appeal
    in respect of an event described in clauses (1) (a) to (f), the limitation
    period resumes running as soon as the time for appeal has expired without an
    appeal being commenced or as soon as any appeal has been finally disposed
    of.

The motion judges decision

[10]

The only question concerning the operation of s.
    28(1) was: When does the limitation period resume running once a certification
    motion is dismissed? The motion judge noted the purpose of s. 28  the
    protection of class members from the operation of limitation periods until the
    availability of class action proceedings was determined, citing his decision in
Coulson v. Citigroup Global Markets Canada Inc.
, 2010 ONSC 1596, affd
    2012 ONCA 108,

288 O.A.C.
    355, which was referred to with approval by the Supreme Court of Canada in
Canadian
    Imperial Bank of Commerce v. Green
, 2015 SCC 60, [2015] 3 S.C.R. 801, at
    para. 60.

[11]

The motion judge accepted the respondents
    argument that the limitation period remained suspended until one of the
    circumstances enumerated in s. 28(1) occurs. In other words, s. 28(1) sets out
    an exhaustive list of the circumstances that restart a limitation period.
    Denial of certification is not one of the enumerated circumstances; therefore,
    the limitation period remains suspended following a denial of certification.

[12]

The motion judge cited this courts decision in
Logan
    v. Canada
(2004)
, 71 O.R.
    (3d) 451, in which Feldman J.A., speaking for the court, stated at para. 22:

[T]he fact that the limitation period does not
    recommence automatically on denial of certification fits within the scheme of
    the
CPA
and should operate fairly and efficiently as each situation
    arises; it is not a reason to give the language of s. 28(1) a strained meaning.

[13]

The motion judge cited
Ragoonanan v.
    Imperial Tobacco Canada Ltd.
,

2011 ONSC 6187, 107 O.R. (3d) 587,

in support of the argument that denial of certification is not a
    triggering event under s. 28 and that a motion under s. 29 is required, though
    he disagreed that a defendants motion under s. 29 was a motion for
    discontinuance, describing it instead as a motion for dismissal without a
    determination on the merits.

[14]

The motion judge said, at para. 57, that if a
    motion to certify a class proceeding is dismissed and none of the circumstances
    enumerated in s. 28(1) apply, in order to deactivate the suspension of the
    running of limitation periods the defendant must bring a motion. He explained:

Until such a motion is brought, not having
    been formally dismissed, the proposed class action is still active albeit that
    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
.

[15]

The motion judge considered that dismissal of a
    certification motion is akin to a discontinuance of a proceeding under the
CPA
.
    Thus, the defendant could bring a motion to have the class proceeding dismissed
    without an adjudication on the merits, a motion that would be akin to
    discontinuance of the action. Suspension of the limitation period would
    continue until the court rules on the terms of the discontinuance or dismissal.

[16]

The motion judge found that following the dismissal
    of a motion to certify, a motion under s. 7 of the
CPA
transitions
    a proposed class action into a proceeding governed by the

Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194,

and the court may order the
    joinder of parties to a continuing action pursuant to those rules:
Joanisse
    v. Barker
, [2006] O.J. No. 5902 (S.C.)
.
    Applying this approach, the motion judge found that, apart from the
    respondents action, her motion under s. 7 should be dismissed because there
    were insufficient facts pleaded to determine whether the test for joinder was
    satisfied. He dismissed the motion without prejudice to the respondents right
    to reapply to join co-plaintiffs on proper material.

DISCUSSION

[17]

The amended statement of claim contains no
    material facts relating to the proposed co-plaintiffs, and counsel for the
    respondent refused to confirm that he was retained by any such plaintiffs. This
    meant there was no proposed plaintiff before the court who had an interest in
    the s. 28 question being decided.

[18]

The appellants submit the motion judge was wrong
    to decide a hypothetical question. Even so, they now urge that it is
    appropriate for this court to determine the question on appeal. We agree.

[19]

The appellants argue that the motion judges
    interpretation of s. 28 results in the indefinite suspension of the limitation
    period following the denial of certification, a result they describe as absurd.
    They urge a purposive interpretation of the
CPA
, rather than a focus
    on the grammatical and ordinary sense of s. 28, and proffer alternative
    interpretations. They argue that, following the refusal to certify, either all
    of the provisions in the
CPA
, or s. 28 in particular, no longer
    apply because no cause of action is being asserted in a class proceeding. As a
    result, the circumstances under s. 28(1) that reactivate the limitation period
    are irrelevant. In the alternative, they argue that the
denial
    of certification could be interpreted as a dismissal of the class proceeding
    without adjudication on the merits, as contemplated by s. 28(1)(d)
,
    and that the limitation period would resume as a result.

[20]

The respondent counters that s. 28 of the
CPA
constitutes a complete code governing the resumption of limitation periods for class
    members and the denial of certification is not one of the listed circumstances.
    The plain meaning of the provision supports the motion judges interpretation:
    the proceeding or action must be dismissed in order for the suspension to end.
    The court should not use a purposive interpretation to rewrite the section to
    include language that the Legislature could have included, but did not.
    Moreover, the respondent notes that there is a significant body of case law
    that supports its interpretation, emphasizing this courts decision in
Logan
,
    which was followed in
Joanisse
and
Ragoonanan
.

[21]

It is well established that the purpose of s. 28
    is to protect putative class members from limitation periods that would
    otherwise interfere with their ability to pursue a class action. As the Supreme
    Court of Canada explained in
Green
, at para. 60:

The purpose of s. 28
CPA
is
    to protect potential class members from the winding down of a limitation period
    until the feasibility of the class action is determined, thereby negating the
    need for each class member to commence an individual action in order to
    preserve his or her rights:
Coulson v. Citigroup Global Markets Canada
    Inc.
, 2010 ONSC 1596, 92 C.P.C. (6th) 301, at para. 49, quoted with
    approval by the Court of Appeal, 2012 ONCA 108, 288 O.A.C. 355, at para. 11.
    Once the umbrella of the right exists and is established by a potential class
    representative in asserting a cause of action, class members are entitled to
    take shelter under it as long as the right remains actively engaged. The
    provision is squarely aimed at judicial economy and access to the courts,
    encouraging the former while preserving the latter.

[22]

In our view, s. 28(1) establishes an exhaustive list
    of circumstances that govern the commencement and suspension of limitation
    periods in the context of class action proceedings. The provision means what it
    says: limitation periods are suspended when the respondent asserts a cause of
    action in a class proceeding and resume only when one of the specific
    circumstances in paragraphs (a)-(f) of s. 28(1) occurs. The denial of
    certification is not one of those circumstances. As a result, the suspension of
    the limitation period remains in place following the denial of certification.
    This understanding of s. 28(1) was confirmed by this court in
Logan
and has been applied in the trial division. There is no basis to change it now.

[23]

Accordingly, the appeal must be dismissed.

[24]

We accept that this result is not ideal. It means
    that the
Limitations Act
has been suspended indefinitely in respect of
    individual claimants even though the rationale for continuing to toll
    limitation periods no longer applies once certification has been denied. In
    particular, the limitation periods remain tolled for strangers to the action,
    whom counsel for the respondent now seeks to join to the respondents action.

[25]

But this problem is by no means new and it does
    not result from our decision in this case. Instead, it is the consequence of
    the clear wording of s. 28(1), which cannot be overcome by the purposive
    interpretation urged by the appellants. It is a consequence that has been clear
    at least since this courts decision in
Logan
in 2004.

[26]

As the motion judge observed, individual actions
    have rarely been pursued if a certification motion was dismissed; as a
    practical matter, the failure to achieve certification usually brings actions
    to an end, rendering questions about whether individual actions are statute
    barred irrelevant. This is that rare case in which the question is not
    irrelevant.

[27]

The motion judge asserted that the appellants
    can bring the suspension of the limitation period to an end by bringing a
    motion to have the class proceeding dismissed without an adjudication on the
    merits. He considered that such a motion would provide fair notice to putative
    class members that the certification motion had failed.

[28]

We agree that notice to potential plaintiffs is
    important, but without more, a motion by the appellants to have the class
    proceeding dismissed would not be sufficient to provide that notice. The motion
    judge would have to make an order that notice be given to potential plaintiffs.
    We note that the motion judge could have made an order requiring notice to
    potential plaintiffs at the same time that he refused certification.

[29]

Be that as it may, we see no basis for the
    motion proposed by the motion judge.

[30]

A motion to dismiss the proceedings contemplates
    that a class action has begun, but the denial of certification means that no
    class action ever came into being. Thus, no action could be dismissed, nor
    could an action be discontinued, and in any event discontinuance contemplates a
    motion brought by the plaintiffs in an action, not the defendant. Nor is it
    clear what the appellants would be required to establish on such a motion. A
    denial of certification is, in our view, akin to the decertification of a class
    action, but while the latter causes the limitation period to resume running,
    the former does not. That is a feature of s. 28(1).

[31]

We note that the Legislature is considering a
    bill that would amend s. 28(1) to add the refusal to certify a class proceeding
    as a circumstance that causes the limitation period to resume running. That
    bill is irrelevant to our decision in this case. Speculation as to what may or
    may not happen in the legislative process does not factor into the statutory interpretation
    process.

CONCLUSION

[32]

The appeal is dismissed.

[33]

Subsequent to the hearing of this matter, the
    parties informed the court that they have agreed on costs and that no order is
    required.

Released: June 25, 2020 (R.G.J.)

R.G. Juriansz
    J.A.

P. Lauwers
    J.A.

Grant Huscroft
    J.A.


