The inordinate and inexcusable delay prejudiced the defendant: court
The Court of Appeal for Ontario upheld the dismissal of a 21-year-old class action regarding the alleged unauthorized use of liquid injectable silicone or injectable grade liquid silicone (IGLS), citing an inordinate and inexcusable delay that prejudiced the defendant.
The representative plaintiff initiated the class action in 2003, and the court certified it later that year. The action sought damages against a physician for unlawfully injecting IGLS into patients’ lips and facial contours. Although the parties made some early progress, including conducting discoveries and establishing a protocol to test an IGLS sample seized by Health Canada, the case significantly slowed over time. In 2019, the plaintiff expressed an intention to test the IGLS sample and proceed to trial, but no trial date followed. In 2022, the defendant sought dismissal of the case for delay, and the lower court granted the motion.
The Court of Appeal agreed with the motion judge’s finding that the delay was excessive and unjustified. It emphasized the principle that plaintiffs bear the responsibility for advancing their claims. The court deemed the two-decade delay without meaningful steps to resolve the matter unacceptable under the Rules of Civil Procedure, which mandate the expeditious resolution of civil cases.
The court also upheld the motion judge’s conclusion that the delay prejudiced the defendant. The inability to test the IGLS sample, coupled with the absence of evidence from other class members, undermined the ability to adjudicate the case fairly. The court noted that the Rules of Civil Procedure apply equally to class actions, which must adhere to the same standards of efficiency and timeliness as other civil litigation.
In its decision, the court highlighted the need for Ontario’s civil justice system to prioritize timely dispute resolution. Citing the Supreme Court of Canada’s call for a “culture shift” in its Hryniak v. Mauldin decision, the court underscored the harmful effects of prolonged litigation on access to justice and judicial efficiency. Ultimately, the court dismissed the appeal, with costs awarded to the defendant.
