Huard v The Winning Combination Inc., 2022 SKCA 130

Court of Appeal for Saskatchewan Docket: CACV3809 Citation: Huard v The Winning Combination Inc. , 2022 SKCA 130 Date: 2022-11-09 Between: Jennifer Huard and Rodney Evason Appellants (Plaintiffs) And The Winning Combination Inc. and Wal-Mart Canada Corp. Respondents (Defendants) Before: Caldwell, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Tholl On appeal from: 2021 SKQB 65 , Regina Appeal heard: May 10, 2022 Counsel: E.F.

Anthony Merchant, K.C. and Anthony Tibbs for the Appellants Gregory Thompson, K.C. for the Winning Combination Inc. George Green for Wal-Mart Canada Corp. Leurer J.A. I. INTRODUCTION [ 1 ] Delay in civil proceedings is apt to cause prejudice to the parties. Unnecessary delay inevitably saps public confidence in the judicial process. The issue in this appeal is whether a Court of Queen’s Bench judge erred by dismissing a proposed class action after its plaintiffs had allowed it to languish for more than a decade. I have concluded that he did not; the claim was appropriately dismissed for want of prosecution. II.

BACKGROUND [ 2 ] Resolve is a non-prescription smoking cessation product. It was first distributed in Canada in October of 2006 by The Winning Combination Inc. [TWC]. After a dispute between TWC and Health Canada, Resolve was pulled from the market in July of 2007. [ 3 ] On March 13, 2009, Jennifer Huard and Jody Deagle issued a statement of claim against TWC, The Winning Combination USA Inc., Wal-Mart Canada Corp. [Walmart], and Wal-Mart Stores Inc.

In it, they allege that Resolve is a dangerous product and should not have been sold without adequate warnings regarding its potential dangers. [ 4 ] On September 16, 2009, Ms. Huard and Ms. Deagle served a notice of motion seeking an order certifying their action as a class action pursuant to The Class Actions Act , SS 2001, c C-12.01 . Their application was supported by an affidavit sworn by Ms. Huard on August 10, 2009. In it, Ms.

Huard expressed her willingness to serve as the representative plaintiff of the proposed class. [ 5 ] Chief Justice Laing designated Herauf J. (as he then was) to hear the certification application, pursuant to s. 4(2) of The Class Actions Act . In April of 2010, Herauf J. scheduled the certification hearing for November 1, 2010, and fixed a timetable of litigation events that would need to occur for that hearing to take place. Justice Herauf later ordered that Ms. Huard provide the defendants with an authorization allowing them to gather her medical records.

He also gave the defendants leave to cross-examine her. Justice Herauf extended the defendants the same rights with respect to Ms. Deagle should the plaintiffs also proffer an affidavit from her. [ 6 ] On October 5, 2010, the plaintiffs amended their statement of claim. As part of this, Ms. Deagle was removed as a plaintiff and Rodney Evason was added in her place. Also, The Winning Combination USA Inc. and Wal-Mart Stores Inc. were removed as defendants. [ 7 ] The next day, that is on October 6, 2010, Herauf J. vacated the dates set aside for the hearing of the certification application.

He also made the following additional procedural orders: (

a) The plaintiffs were directed to file within 30 days an affidavit from Mr. Evason and to provide an authorization for the release of his medical records, and Mr. Evason was to make himself available for cross-examination; (

b) Counsel for the plaintiffs and defendants were directed to attempt to work out a timetable for the completion of the steps leading to the hearing of the certification application and if after six weeks counsel were unable to do so, any party could contact the local registrar to arrange to appear before Herauf J. at a case conference; and (

c) TWC’s counsel was directed to prepare an order embodying the directions given in the October 6, 2010, fiat, provide it to plaintiffs’ counsel for his consent, and then file it with the registrar for Herauf J.’s approval.

[ 8 ] In accordance with the first part of these directions, Mr. Evason swore an affidavit on October 29, 2010. In it, he indicated his willingness to be appointed as a representative plaintiff. Mr. Evason also provided an authorization for the release of his medical records. In compliance with the third part of these directions, TWC’s counsel prepared a draft order that embodied the orders made on October 6, 2010. [ 9 ] Although parts of Herauf J.’s procedural directions were carried out, others were not.

More specifically, counsel for the plaintiffs did not take the steps, as was incumbent on them, to finalize the order contemplated by Herauf J.’s directions, and one was never issued. Counsel for the parties also failed to work out a timetable for what would need to be done for a certification hearing to be held. Notwithstanding these facts, neither side contacted the Court of Queen’s Bench registrar to arrange another case conference with Herauf J. to set this timetable. No cross-examinations were conducted. No other affidavits were filed. [ 10 ] On March 3, 2011, Herauf J. was appointed to this Court.

On December 2, 2011, Laing C.J.Q.B. designated Schwann J. (as she then was) to hear the certification application. On August 15, 2017, Schwann J. was appointed to this Court.

All of this passed without any party to the action taking any additional steps to move ahead with the certification application. [ 11 ] Just over ten years after the last step was taken by the parties in the action, on December 14, 2020, TWC served on the plaintiffs a notice of application, returnable in regular Chambers on February 18, 2021, for an order dismissing the plaintiffs’ amended statement of claim pursuant to Rule 4-44 of The Queen’s Bench Rules [ Rules ].

TWC also served an affidavit sworn by its Chief Executive Officer, Shazad Bukhari. [ 12 ] On January 27, 2021, Walmart served a notice of application seeking the same relief, also returnable on February 18, 2021. This application was supported by an affidavit sworn by Walmart’s Director, Pharmacy and Optical, Health and Wellness, Catherine Theberge-Conner. [ 13 ] The plaintiffs filed no evidence in reply to the two applications. The parties exchanged briefs of law.

The two applications came before the presiding judge in Chambers on February 18, 2021, and oral argument was presented. [ 14 ] The Chambers judge later issued two fiats, dismissing the action against both TWC and Walmart: Huard v The Winning Combination Inc. , 2021 SKQB 65 [ TWC Fiat ], and Huard v The Winning Combination Inc. (9 March 2021) Regina, QBG 422 of 2009 [ Walmart Fiat ]. III. ISSUES [ 15 ] The plaintiffs’ appeal can be distilled to a request that this Court answer three questions: (

a) Did the Chambers judge have jurisdiction to hear and decide the applications? (

b) Did the Chambers judge err by not adjourning the applications? (

c) Did the Chambers judge err in dismissing the action for delay? IV. ANALYSIS A. Did the Chambers judge have jurisdiction to hear and decide the applications? [ 16 ] The plaintiffs invited the Chambers judge to conclude that he should not hear and decide the defendants’ applications because he had not been designated by the Chief Justice of the Court of Queen’s Bench to consider the certification application. They based their submissions on s. 4(2) of The Class Actions Act .

This provision requires that a plaintiff seeking certification of a class action apply to the Chief Justice of the Court of Queen’s Bench for the designation of a judge to hear their certification request, stating as follows: 4

(2) The member who commences an action pursuant to subsection (1) shall: (

a) apply to the chief justice of the court for the designation of a judge to consider an application mentioned in clause (b) ; (

b) apply to the judge designated pursuant to clause (

a) for an order: (

i) certifying the action as a class action; and (ii) subject to subsection (4), appointing the member as the representative plaintiff for the class action; and (

c) give notice of the application for certification to the representative plaintiff in any multi-jurisdictional class action, or any proposed multi-jurisdictional class action, commenced elsewhere in Canada that involves the same or similar subject-matter. (Emphasis added) [ 17 ] The Chambers judge rejected this submission. He found that it is “currently accepted law that a justice in civil chambers in Saskatchewan has jurisdiction to decide preliminary applications relating to class actions”.

He added that this is “particularly relevant in situations where there is no single judge who has been designated to hear the pre-certification applications in this class action matter” ( TWC Fiat at para 16).

[18] In this Court, the plaintiffs renew the argument. They submit that the Chambers judge erred in law by finding that he hadjurisdiction to deal with the defendants’ applications. [19] As I will explain, there are many good reasons why the judge appointed to hear the certification application should also decidematters that are brought in the lead-up to it. However, the acceptance of this proposition is several steps removed from the idea that, as amatter of jurisdiction, that judge must hear all other applications relating to a proposed class action.

I say this for several reasons. [20] First, care must be taken not to read more into s. 4(2) than what it says. On its face, it mandates that a plaintiff seeking tocertify a class action must apply to the Chief Justice of the Court of Queen’s Bench – now Court of King’s Bench – to designate a judge toconsider that request.

This provision is crafted with evident attention to the fact that one of the responsibilities of the chief justice is to“co-ordinate and apportion the business of the [Court of King’s Bench] and assign the judges to hold court and chambers at any times andplaces that the chief justice considers appropriate” (s. 14, The Queen’s Bench Act, 1998, SS 1998, c Q-1.01). Seen in this light, s. 4(2)neither confers nor restricts the jurisdiction of individual Court of King’s Bench judges.

Instead, it constitutes a legislative direction, tolitigants and to the chief justice, that a judge be assigned to determine certain matters. In this regard, I would also observe that s. 4(2)refers only to the designation of a judge “to consider” a certification application.

It goes no further than that, although, as I will explain,other provisions do add to the responsibilities of a judge who is designated pursuant to s. 4(2). [21] Second, sight should not be lost of the fact that the Court of King’s Bench is “the superior court of record in and forSaskatchewan that has civil and criminal jurisdiction” (s. 3(1), The Queen’s Bench Act, 1998). Its judges have inherent jurisdiction.Pursuant to s. 9(4) of that Act, every judge of the Court of King’s Bench also has statutory “jurisdiction to hear and determine any actionor matter in the court” (emphasis added).

Having regard to all of this, it would take something more specific than the requirement set outin s. 4(2) of The Class Actions Act that a judge be designated to hear the certification application to oust the authority of a judge of theCourt of King’s Bench to hear applications such as those brought by TWC and Walmart. [22] Third, other sections of The Class Actions Act add to the responsibilities of a judge designated under s. 4(2). Conspicuously,these responsibilities relate to the conduct of the litigation post-certification.

These provisions support the conclusion that it was not theLegislature’s intention to interfere with the jurisdiction of individual judges of the Court of King’s Bench, at least prior to the grant of acertification order. In this regard, pursuant to s. 16(1), the judge who makes a certification order “shall hear all applications in the classaction before the trial of the common issues”. The term “class action” is defined in The Class Actions Act to mean an “action certified as aclass action” under that statute (s. 2).

There is no similar direction that the designated judge hear all applications in relation to the actionbefore it is certified. Moreover, the requirement that the designated judge hear all applications post-certification is itself qualified. Section16(2) provides that if the judge who made the certification order “becomes unavailable for any reason to hear an application in the classaction, the chief justice of the court may assign another judge of the court to hear the application”. [23] I draw two conclusions from these provisions.

First, the absence of an equivalent direction to that found in s. 16(1) with respectto pre-certification motions signals that s. 4(2) should not be interpreted as containing an implicit requirement that the judge designated tohear the certification application must hear other applications prior to the grant of the certification order.

Second, the fact that s. 16(2)contemplates the replacement of the designated judge, when that judge is unavailable, reinforces the idea that the Legislature’s concernwas with the assignment of a judge for the purposes of The Class Actions Act, and is not purporting to usurp judges’ jurisdiction, or that ofthe Chief Justice of the Court of King’s Bench to assign and

schedule judges. [24] None of this is to say that, when a proposed class action has been commenced, it is not generally desirable for pre-certificationapplications to be heard by the judge who has been designated to hear the certification application. As I have noted, s. 16 signals alegislative intention that, when certified, class actions are to receive active and consistent supervision by a single judge. There are manygood reasons that this occur pre-certification as well. Even before certification, an action for which certification is sought is often complexprocedurally – although, at times, unnecessarily so.

When an action is brought under the supervision of a single judge, that judge willaccumulate knowledge of the proceedings that will help them handle it more efficiently and, in many cases, allow them to makebetter-informed decisions. In keeping with this, in JKT Holdings Ltd. v Aviva Canada Inc., 2020 SKQB 347 at para 25, 66 CPC (8th) 402,Robertson J. stated, with reference to many authorities, that the “consensus is that while any judge may hear such preliminaryapplications, the practice is to leave those applications for the judge designated to hear the certification application”.

I agree. [25] However, while generally this is a preferred practice, as a matter of jurisdiction, any judge of the Court of King’s Bench canhear and decide applications that are brought prior to the hearing of an application to certify an action as a class action. I need not decidewhat the situation would be if a judge, who had not been designated by the Chief Justice of the Court of King’s Bench to hear acertification application, nonetheless presided over and decided such an application.

That issue is not before this Court. [26] Finally, the plaintiffs argue that the Chambers judge lost jurisdiction to decide Walmart’s motion once he had granted TWC’sapplication. This submission builds from the fact that the TWC Fiat only addressed that company’s application.

After it was issued,Walmart’s counsel wrote to the local registrar to “inquire if there is a further fiat from [the Chambers judge] coming relating toWal-Mart’s application to dismiss?” The same day, the Chambers judge issued the Walmart Fiat, which stated that the claim against it “isalso dismissed based upon the same reasons as the claim against [TWC]”. The plaintiffs rely on the doctrine of functus officio to say thatthe Chambers judge lost jurisdiction to decide the Walmart application once he had issued the TWC Fiat.

However, they cite no case lawin support of this part of their argument. [27] In Chandler v Alberta Association of Architects, (SCC), [1989] 2 SCR 848 at 866–867, L’Heureux-Dubé J.,dissenting but not on this point, cited several other cases, all of which define functus officio as referring to an office holder or agencywhose authority has come to an end.

She refined this, in an adjudicative context, describing the doctrine as providing that “an adjudicator,be it an arbitrator, an administrative tribunal, or a court, once it has reached its decision cannot afterwards alter its award except to correctclerical mistakes or errors arising from an accidental slip or omission” (at 867, citing Re Nelsons Laundries and Laundry, Dry CleaningEtc. Union (1964), (BC SC), 44 DLR (2d) 463 (BCSC)). [28] In this case, the plaintiffs’ argument that somehow the Chambers judge had exhausted his jurisdiction ignores that there weretwo applications before him.

Each required a judicial determination. The TWC Fiat did not rule on Walmart’s application. When this factwas drawn to his attention, it was not only appropriate, but necessary, for the Chambers judge to rule on the outstanding Walmart motion.

[ 29 ] For these reasons, I reject the plaintiffs’ argument that the Chambers judge erred in finding that he had jurisdiction to hear and decide the dismissal applications. B.

Did the Chambers judge err by not adjourning the applications? [ 30 ] The plaintiffs’ alternative argument is that, if the Chambers judge had jurisdiction to hear the applications, he nonetheless erred by failing to adjourn them so that they could be heard by a judge to be designated pursuant to s. 4(2) of The Class Actions Act . [ 31 ] There are many decisions where judges who have not been designated to hear a certification application have deferred the hearing of pre-certification applications so that they could be brought before a judge designated pursuant to s. 4(2) .

By way of example only, in Holmes v Jastek Master Builder 2004 Inc. , 2007 SKQB 242 , 308 Sask R 156, an application for an order to amend a statement of claim in a proposed class action came before Hrabinsky J., sitting in regular Chambers. He refused to grant the order because no judge had been designated under s. 4(2) and he found that “the better practice would be to have a case management judge in place before whom this application could be made” (at para 11).

Accordingly, he dismissed the application without prejudice to the plaintiffs’ right to reapply. [ 32 ] However, neither Holmes nor any of the other cases cited by the plaintiffs stands for the proposition that it is never appropriate for a judge sitting in regular Chambers to proceed to hear such an application.

In this case, I find no error by the Chambers judge in not adjourning the applications so that they could be heard by a judge designated under s. 4(2) of The Class Actions Act or by ruling on more than the plaintiffs’ jurisdictional argument. [ 33 ] A decision by a judge to grant or refuse an adjournment request involves the exercise of judicial discretion: Yashcheshen v Teva Canada Ltd. , 2022 SKCA 49 at para 32 , [2022] 8 WWR 60.

Accordingly, the plaintiffs can succeed on this ground only if the judge “made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider material evidence” or “where the judge failed to correctly identify the legal criteria which governed the exercise of their discretion or misapplied those criteria” or “fail[ed] to give any or sufficient weight to a relevant consideration” ( Kot v Kot , 2021 SKCA 4 at para 20 , 63 ETR (4th) 161, and Yashcheshen at para 22 ). [ 34 ] The plaintiffs did not frame their arguments under this head with reference to this standard of review.

Rather, they say that judges have “repeatedly, appropriately and consistently” refused to hear applications of this nature made returnable in regular Chambers. However, this assertion falls short of alleging that the Chambers judge erred in principle when he heard the applications. I also fail to see any other error by him that would justify this Court’s intervention. [ 35 ] First, and decisively, there was no designated judge appointed to hear the application.

As I would understand it, this is the context for the Chambers judge’s statement that the jurisdiction he identified to hear the applications was “particularly relevant in situations where there is no single judge who has been designated to hear the pre-certification applications in this class action matter” ( TWC Fiat at para 16).

If it truly mattered to them, the plaintiffs could have taken steps, in the two months between the receipt of TWC’s application and its hearing date, to request that the Chief Justice of the Court of Queen’s Bench (as it was at the time) have a judge designated under s. 4(2) so that the designated judge could hear the defendants’ applications. Rather than doing this, they first raised the issue (but made no request) in the brief they filed just days before the hearing. [ 36 ] Second, there was nothing to be gained by an adjournment.

One of the reasons why a judge sitting in regular Chambers might refuse to hear an application brought in the context of a proposed class action is that the decision-making might be informed by what has occurred in the past in the action or because what may be learned from it might assist in future applications. However, this point is not relevant here. There was no existing designated judge. Even if one had been designated, that judge would have been in no better position than the Chambers judge to determine the applications because that judge would have had no prior history with the file.

Finally, if the applications were granted, that would end the plaintiffs’ action and there would be no need for a judge to be designated in the future. [ 37 ] Related to this, the plaintiffs suggest that they were denied procedural fairness when the judge went further than simply ruling on their jurisdictional argument by determining the merits of the dismissal applications. However, there is no suggestion that the plaintiffs did not have adequate time to assemble evidence and prepare for the hearing of the applications or that they were not fully heard on the merits, which they argued.

In short, there was no reason to set the applications over to another day. Also, not only was there nothing to be gained by adjourning the applications, but there was good reason for them to proceed. Deferring the applications to a designated judge would have exacerbated the delay in this action. [ 38 ] In short, there is no merit to the plaintiffs’ arguments that the Chambers judge erred by not adjourning the applications and by ruling on more than their jurisdictional objection. C.

Did the Chambers judge err in dismissing the action for delay? [ 39 ] TWC’s and Walmart’s applications were made pursuant to Rule 4-44(a), which provides that, if delay occurs in an action, on application, the court may “dismiss all or any part of a claim if the Court is satisfied that the delay is inordinate and inexcusable and that it is not in the interests of justice that the claim proceed”. The issue under this head is whether the Chambers judge erred on the merits when he dismissed the action for delay under this Rule. 1.

The ICC framework [ 40 ] The leading case, that established the principles that govern the applications for orders dismissing actions for want of prosecution, and which became the basis for Rule 4-44, is International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 DLR (4th) 155 [ ICC ]. In it, Richards J.A. (as he then was) laid out the following framework for analyzing an application to dismiss a claim for want of prosecution: [43] The first step … is an inquiry about whether the defendant has established that the delay in moving a case ahead has been

inordinate. This will involve considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity. This is necessarily a matter of informed judgment grounded in the overall experience of the court and the particulars of the file in question. [44] The second step in the analysis … is an examination of the reasons for the delay aimed at determining whether it is excusable.

This inquiry will entail consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly. A wide variety of factors might be expected to factor into this assessment. [45] The third step … is this. If the court finds delay to have been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question.

Rather, it should move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context. In dealing with this third and final part of the analysis, the court should have regard to all of the relevant circumstances .... [ 41 ] Justice Richards went on to list eight non-exhaustive considerations that bear on whether it is in the interests of justice that a case should proceed to trial, notwithstanding the finding that there had been inordinate, non-excusable delay. These were: (

a) the prejudice the defendant will suffer in mounting its case if the matter goes to trial; (

b) the length of the inexcusable delay; (

c) the stage of the litigation; (

d) the impact of the inexcusable delay on the defendant; (

e) the context in which the delay occurred; (

f) the reasons offered for the delay; (

g) the role of counsel in causing the delay; and (

h) the public interest. [ 42 ] ICC was decided in the context of a previous generation of the Rules . This Court has repeatedly confirmed its continued applicability under the Rules as amended in 2013: see, most recently, Taylor v Moose Jaw Downtown and Soccer/Field House Facilities Inc. (Mosaic Place) , 2021 SKCA 123 [ Taylor ]. 2. The Chambers decisions [ 43 ] After rejecting the plaintiffs’ jurisdictional argument, the Chambers judge turned to consider if the claim should be dismissed because it had not been prosecuted in a timely fashion.

In this regard, he first observed that Saskatchewan courts have, “in previous actions, found 7, 8, 9 and 10 year delays were inordinate, let alone 12 years” ( TWC Fiat at para 20). He also found that the delay was not excusable: [21] As the present case involves alleged consumption of Resolve, this had to have occurred in 2006 or 2007, although the original statement of claim was not issued until March 13, 2009. No formal steps were taken to pursue this action between October 29, 2010 and the date of this application.

No certification application within 10 years is totally unacceptable to our judicial system, considering the fact that The Class Actions Act , SS 2001, c C-12.01 requires a certification application be made within 90 days of the statement of defence being delivered or the deadline for which the statement of defence should have been delivered. [22] A determination of whether a delay is excusable will entail considerations of the nature of the claim, the diligence with which the claim is being pressed by the plaintiff and specific reasons offered as to why the matter has not moved more quickly.

The plaintiff has the onus of showing an excuse for this delay. [23] It is apparent on the face of the documentation filed that the plaintiffs have failed in their duty to move this action along. The plaintiffs have not offered any credible excuse for the inordinate delay. This is a very early stage. There is no justification for stalling at this point in time. The action has not even been certified as a class action despite the certification application originally scheduled to be heard in November of 2010. Nothing has occurred since the scheduling.

This is totally inexcusable. [ 44 ] Having determined that the first two parts of the ICC test were met, the Chambers judge turned to the third. He set out the eight considerations identified in ICC as bearing on whether the interests of justice compel that a claim be allowed to proceed, notwithstanding the existence of inordinate, inexcusable delay. He then brought all of this into the facts of this case. [ 45 ] In this context, the Chambers judge noted that the action related to side effects allegedly caused by a product sold only between October of 2006 and July of 2007.

This meant that “prospective class members’ claims are about a product they purchased and consumed 13 years ago”. He found that the “passage of time will make it more difficult for [TWC] to prosecute its defence given that memories have faded and medical records and other evidence may have been misplaced or destroyed” (at para 25). In reaching this conclusion, he made specific reference to evidence that showed turnover in TWC’s staff, a change in its computer system and several office moves.

Based on this, he determined that it “would be significantly more difficult for [TWC] to obtain the evidence required to defend itself in the lawsuit than it would have been if the matter had proceeded to a certification hearing and/or trial years ago”. From this, he found that TWC “would be prejudiced in mounting its case if the action were to proceed” (at para 26). [ 46 ] The Chambers judge reviewed the procedural status of the action and observed that it was “still in the very early preliminary stages of litigation” (at para 29).

He found that “inordinate delays not only frustrate the litigants, but also undermine public confidence in the justice system as a whole”. He took note of the policy embedded in The Limitations Act , SS 2004, c L-16.1 , that “recognizes that potential litigants should not have to face claims after a specified period of time” (at para 37). He also found that the court did not owe a duty to putative class members because the action had not been certified. [ 47 ] These determinations were made in the TWC Fiat . Walmart’s application was not referenced in that decision.

As mentioned before, in the Walmart Fiat , the Chambers judge ordered that the claim against it be “dismissed based upon the same reasons as the claim against [TWC]”. 3. The plaintiffs’ arguments [ 48 ] A decision to dismiss a claim for delay is discretionary: ICC at para 19 ; and Taylor at para 13 . As I have earlier explained, this allows for only limited bases for this Court to intervene. It is therefore important to focus on the specifics of the plaintiffs’ arguments so that the correct standard of review can be identified and applied.

a. Alleged error: Applying the ICC framework [ 49 ] Many of the plaintiffs’ arguments can be understood as suggesting that the Chambers judge should not have applied the ICC framework to test the merit of the defendants’ applications. This is an allegation that he erred in principle, which is to be evaluated against the standard of correctness. [ 50 ] As I will explain, the Chambers judge was correct to use the ICC framework to determine the TWC and Walmart applications. In general terms, the ICC test is now codified in Rule 4-44.

The part that is not is the non-exhaustive list of considerations relevant to whether it is in the interests of justice to allow a claim to continue even if there has been inordinate and inexcusable delay. As a whole, the ICC test is well-suited as a tool to evaluate whether a proposed class action should be dismissed for delay, so long as proper attention is paid to the procedural course it is destined to take.

I will explain this conclusion with reference to several of the arguments the plaintiffs make in this case. [ 51 ] One of the points of attack by the plaintiffs is on a statement made by the Chambers judge that the courts are “more inclined to strike a claim that has never progressed beyond the pleadings stage compared to one that is well advanced” ( TWC Fiat at para 28).

This comment is a close paraphrase of one of the factors that Richards J.A. identified in ICC as bearing on whether the interests of justice might tilt in favour of allowing an action to proceed, even if there had been inordinate, inexcusable delay (at para 45): … (

c) The stage of the litigation – In general terms, a court should be less inclined to strike an action which is well advanced than one which is in its early stages. The interests of justice will normally weigh in favour of getting a case to trial if it has somehow stalled just short of that mark.

On the other hand, by way of illustration, an action which has never progressed beyond the pleadings stage, and in which the parties have invested little time or resources, might be easier to strike. … [ 52 ] The plaintiffs say that this “does not correlate with the certification process envisaged by The Class Actions Act ”.

They explain that, in a proposed class action, pleadings may not close for many years because, very often, defendants to a proposed class action do not file a statement of defence until the outcome of the certification application is known (per Hoffman v Monsanto Canada Inc. , 2002 SKCA 120 , 220 DLR (4th) 542). They also note that, in general, questioning does not occur until after certification (per Alves v Sunquest , 2009 SKQB 232 , 340 Sask R 152 [ Alves ]).

However, these kinds of procedural differences are easily accounted for in within the ICC test. [ 53 ] Within the ICC test, an evaluation of the stage of a proceeding is often relevant when consideration is given to whether there has been delay, when there is an evaluation of whether the delay has been inordinate, and when a court determines where the interests of justice lie.

I see no difficulty in a court assessing any of this simply because it is addressing the delay in the prosecution of a proposed class action, so long as attention is paid to what is required to move an action ahead in that context, which includes assessing what must be done for the action to reach the certification hearing. [ 54 ] Another relevant consideration is the stake that other claimants have in the outcome. In most so-called ordinary actions, only the interests of the plaintiffs are at stake. In a proposed class action, other peoples’ interests are potentially affected.

For example, putative class members may have become aware of the existence of a proposed class action and, for that reason, may have held off in organizing their own lawsuits. There are also special rules surrounding the running of limitation periods, that I discuss elsewhere in these reasons. [ 55 ] Third party interests like these should be considered when a court evaluates whether to dismiss a proposed class action for delay.

However, they are properly accounted for as a relevant factor at the third stage of the ICC test, namely, whether it is in the interests of justice that the proposed class action proceed, notwithstanding that there has been inordinate and inexcusable delay. [ 56 ] To be clear, this does not mean that the existence of other claimants (i.e., putative class members) becomes a reason to automatically dismiss a delay application. Many considerations may bear on the significance of this factor in the analysis. Non- exhaustively, these may include: (

a) the information that putative class members have about the proposed class action; (

b) what actual reliance putative class members have placed on the proposed class action as the vehicle for addressing their claims; (

c) what information the putative class members have, or reasonably should have, as to the delay in the prosecution of the proposed class action and what steps, if any, they took to prompt it along or to pursue their claims independently in the face of that delay; (

d) the existence of other actions in which the putative class members’ claims might be prosecuted; (

e) the existence of legal or practical barriers to the prosecution of the putative class members’ claims outside of the proposed class action, either alone or with others; and (

f) the relationship of the claimants to the named plaintiffs. All of this is to say that, where there is evidence of people other than the named plaintiffs who may be prejudiced if an action is struck for delay, that fact should generally be weighed by a court when considering whether it is in the interests of justice that an action be allowed to proceed even though there has been inordinate and inexcusable delay. [ 57 ] Based on all of this, I am satisfied that the Chambers judge was correct when he chose to use the ICC framework to assess the applications to dismiss this proposed class action for delay.

The question of whether the ICC framework should be applied when an application is made to dismiss a certified class action for delay is not an issue in this appeal. b. Alleged error: Failing to account for the fact that this action was a proposed class action [ 58 ] The plaintiffs argue, in the alternative, that the Chambers judge’s reasons suggest that he failed to account for the fact that they sought to have their action certified as a class proceeding in his application of the ICC framework.

I am satisfied that he did not err in this way. [ 59 ] Immediately following the Chambers judge’s statement that the courts are “more inclined to strike a claim that has never progressed beyond the pleadings stage compared to one that is well advanced” (at para 28), the Chambers judge observed that there “is no question that this proposed action has never been certified and is still in the very early preliminary stages of litigation” (at para 29). This is an accurate statement of the progress of the action however it is measured. While a certification application had been filed, the affidavits

supporting it were cursory and its prosecution had been stuck in limbo for over a decade. When an examination of the post-certificationpath that the action would need to take to reach its conclusion (i.e., should it be certified) is considered, the Chambers judge’s statementrings even more true. [60] There is also no foundation for the plaintiffs’ suggestion that the Chambers judge failed to account for the interests of putativeclass members.

The plaintiffs have offered no evidence that there is any other person who is interested in the prosecution of a claimagainst TWC or Walmart in relation to Resolve. [61] In a related vein, the plaintiffs argue that the Chambers judge erred in principle when he stated, with reference to Duzan vGlaxoSmithKline, Inc., 2011 SKQB 118 at para 50, 372 Sask R 108 [Duzan], that the court “does not owe a duty to protect the interests ofpotential class members in a prospective class action” (at para 38).

I agree that the Chambers judge could have been less definitive in thisstatement, because there are contexts in which the court must be mindful of the interests of putative class members. As I have explained,an application to strike a proposed class action for delay is one such situation.

However, in the present context, where the plaintiffs havenot pointed to even a single other person who has relied on the existence of this proposed class action – for example, to delay in theprosecution of their own claim – there is no reason to examine the contours of the Chambers judge’s statement any further. [62] Finally, the plaintiffs have offered no reason, related to the nature of their claim, that provides a justifiable reason for lettingtheir action sit in abeyance.

After many years of litigation between TWC and Health Canada, several of Health Canada’s decisions thathad led to the removal of Resolve from the market were quashed: Winning Combination Inc. v Canada (Minister of Health), 2016 FC 381,appeal allowed in part, Canada (Minister of Health) v The Winning Combination Inc., 2017 FCA 101, 413 DLR (4th) 362, leave to appealto SCC refused, .

I see nothing in the existence of these administrative proceedings that would justify the plaintiffshaving taken no steps to move ahead with the proposed class action, particularly given that the object of these administrative proceedingswas for TWC to be able to return Resolve to the market. As it is, TWC’s evidence is that Health Canada ultimately granted a licence forResolve, but there continues to be disagreements between Health Canada and TWC regarding market access.

The upshot is that, to thisday, Resolve is not available for purchase in Canada, nor has it been since it was removed from the market in 2007. [63] The facts here can be contrasted with proposed class actions that have sat in abeyance for some identifiably good reason. Forexample, in Knight v Imperial Tobacco Canada Limited, 2017 BCSC 1487, Smith J. found that British Columbia’s rule of civil proceduredealing with delay applies to proposed class actions.

The judge also found that a delay of over 14 years, with a seven-year period ofinactivity, was inordinate, but concluded that it was excusable because the delay was a “tactical decision made in good faith by plaintiff’scounsel to await the results” of similar proceedings in Quebec, which neither the named plaintiff nor members of the putative class playeda role in making (at para 68).

Without considering how far this idea should be pressed in the context of this province’s Rules, there issimply no evidence, nor is there a basis to infer, that the plaintiffs’ delay in this case is a result of a similar justifiable tactical decision. [64] In

summary under this head, the Chambers judge did not fail to recognize that the plaintiffs’ action was a proposed class actionwhen he applied the ICC framework. c. Alleged error: Failure to consider the futility of a dismissal order [65] Somewhat ironically, rather than arguing that the dismissal of their claim will prejudice putative class members, the plaintiffssay that nothing will be accomplished by an order that their proposed class action cannot proceed.

In this regard, they say that the effect oftheir proposed class action has been to toll the limitation period otherwise applicable to other persons’ claims and that there is nothing tostop others from commencing a new action since they would not be bound by the dismissal order. Considering this argument within theICC framework, the submission can be understood as an allegation that the Chambers judge failed to account for a factor that bears onwhether it is in the interests of justice to allow the action to go forward even though there has been inordinate, inexcusable delay.

It is myconclusion that it was not an error for the Chambers judge to fail to account for this, even if a correctness standard of review is applied toit. [66] I offer no comment on whether the running of limitation periods has been tolled if the plaintiffs’ action is dismissed. This issueturns on the proper

interpretation of s. 43 of The Class Actions Act, which states as follows: Limitation periods 43(1) Any limitation period applicable to a cause of action asserted in an action: (

a) is suspended in favour of a person if another action was commenced and it is reasonable for the person to assume that he or she was aclass member for the purposes of that other action; and (

b) resumes running against the person when one of clauses (2)(

a) to (

g) applies to the person as though he or she was the membermentioned in subsection (2).

(2) Any limitation period applicable to a cause of action asserted in an action that is certified as a class action is suspended in favour of aclass member on the commencement of the action and resumes when: (

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

b) a ruling by the court has the effect of excluding the class member from the class action or from being considered to have ever been aclass member; (

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

d) a decertification order is made pursuant to

section 12; (

e) the class action is dismissed without an adjudication on the merits;

(

f) the class action is discontinued or abandoned with the approval of the court; or (

g) the class action is settled with the approval of the court, unless the settlement provides otherwise.

(3) If there is a right of appeal respecting an event described in clauses (2)(

a) to (g), 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. [ 67 ] I can agree with the plaintiffs that the dismissal of their action will not bind non-plaintiffs in the sense of barring them from issuing a new claim. However, that is as far as I can go with their argument. No court has definitively ruled on whether the effect of s. 43 is to toll the running of limitation periods applicable to the claims of putative class members when the proposed class action is not ultimately certified.

What comment has been offered on the issue has been in different contexts and may be read as disclosing a division in judicial thinking on the issue.

Each of Duzan (at para 50 ), Precision Contractors Ltd. v Saskatchewan , 2011 SKQB 407 at para 100 , 378 Sask R 31, and Harvey v Western Canada Lottery Corporation , 2015 SKQB 102 at paras 36–37 , [2015] 9 WWR 391, suggest that, under s. 43(2), given the statutory definition of a “class action”, limitation periods continue to run against putative class members but, once an action is certified, they are retroactively suspended back to the date of the initial filing and only resume running upon any of the events specified in s. 43(2).

These cases suggest, however, that if the action is never certified, the limitation periods were never suspended. In contrast, Alves , at paragraphs 55–56 , supports the idea that the running of limitation periods against putative class members is suspended even if the action is not ultimately certified. [ 68 ] I need not decide this point because there are two complete answers to the plaintiffs’ argument that the dismissal of their action accomplishes nothing. First, as I see it, it is largely up to the defendants to assess whether a practical purpose is served if the plaintiffs’ action is dismissed.

At least in this context, I do not consider it the courts’ role to second guess this assessment. Second, and in any event, as I have noted, there is no evidence that there is any person, other than the plaintiffs, who is interested in prosecuting a claim against the defendants. d. Alleged error: Finding the defendants had no obligation to move the action along [ 69 ] The plaintiffs also submit that the Chambers judge erred in principle when he stated that “there is no positive obligation on the defendant to move the litigation forward” (at para 31).

Considering the allegation, the standard of review is correctness. However, I see no error on the part of the Chambers judge; the defendants had no positive obligation to move the action forward . [ 70 ] The plaintiffs’ submission under this head is answered in Taylor . In that case, a plaintiff argued that amendments made to the Rules in 2013 meant that, when an action languishes, a plaintiff may point to the lack of prompting from a defendant to justify its own inactivity. This proposition was rejected in Taylor .

That case holds that a defendant can be held partially responsible for a delay that occurs because it did not fulfill one of its litigation responsibilities but it is clear that a defendant’s inaction will not excuse a plaintiff’s delay. [ 71 ] In Taylor , Richards C.J.S. explained that the ICC framework “ contemplates that defendants have responsibilities in the conduct of litigation and that their actions are relevant to the analysis of an application to strike a claim for want of prosecution” (at para 22). He detailed how this plays out in all three phases of the ICC test.

By way of an example under the first stage of that test, because the measure of inordinate delay involves an assessment of the case’s complexity, and a “defendant can increase the complexity of a case” in various ways, the defendant’s conduct can affect the assessment as to whether the delay has been inordinate (at para 22). However, this posits a positive step by the defendant that has affected how long a case is apt to take.

By way of example under the second phase, whether the delay is excusable, Richards C.J.S. stated that “if a defendant delays unnecessarily or unjustifiably in taking a step in the litigation when it has an obligation to act … those delays will be ‘excusable’” (at para 23, emphasis added). The emphasized words make clear that it is inaction by a defendant when it is obligated to act that provides an excuse for the delay that inaction causes.

Under the third phase, public interest, Richards C.J.S. gave as an example where “a defendant has failed unjustifiably or unreasonably to move a file forward in circumstances where it has an obligation to act , this will also cut in favour of allowing the matter to proceed to trial” (at para 25, emphasis added).

This again tied the relevance of the defendant’s inaction to a situation where it had a positive obligation to do something. [ 72 ] The fact that it is only when a defendant fails to fulfill its litigation responsibilities that a plaintiff can begin to deflect responsibility for a delay on it was made abundantly clear when Richards C.J.S. brought it all together, and stated as follows: [26] In

summary, therefore, the ICC framework already reflects and incorporates the notion that a defendant has obligations in the conduct of litigation. While the ultimate and ongoing responsibility for moving litigation forward lies with the plaintiff, the defendant too has obligations. These do not amount to a duty to somehow drag the case over the finish line for the plaintiff.

Rather, they involve a responsibility to act, on a timely basis, in taking the steps prescribed by the Rules and taking such other steps, like responding to correspondence, that legitimately call for action on its part. … [ 73 ] As I read this passage, two things are beyond doubt. First, a defendant’s obligations are to “act, on a timely basis, in taking the steps prescribed by the Rules and taking such other steps, like responding to correspondence, that legitimately call for action on its part” (emphasis added). They are not otherwise obligated to press the action ahead.

This leads to the second point, namely, that the “ultimate and ongoing responsibility for moving litigation forward lies with the plaintiff ” (at para 26, emphasis added). [ 74 ] This is not to say that the fact that a defendant has been content to allow an action to sit in abeyance should be completely ignored as part of the overall context of the application.

In Morsky Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 at para 46 , 485 Sask R 32, Whitmore J.A. stated that the “absence of evidence that the defendant took any steps to proceed will also weigh against the defendant, albeit marginally ” (emphasis added). The idea that a defendant is not obligated to move ahead with the litigation is also attenuated in a family law context (see: Schening v Steel , 2020 SKCA 137 at para 21 , 51 RFL (8th) 1). One reason for this is that it is often happenstance which party initiates a family law proceeding.

However, none of this means that, in general civil litigation or in a proposed class action, a defendant is obligated to do more than to take the steps required of it in the litigation process. [ 75 ] In this case, even if the view most generous to the plaintiffs is taken, and some responsibility for the delay is laid at the feet of

the defendants because, after Herauf J.’s October 6, 2010, fiat, they also did virtually nothing to press the action forward, their inactivity would not provide a basis to interfere with the Chambers judge’s discretionary decision in a context where so many other factors favoured the dismissal of this action. [ 76 ] Therefore, while the Chambers judge’s statement that there is no positive obligation on the defendant to move the litigation forward masks some nuances in the law, I see no legal error on his part.

On the facts here, he was completely correct that the ultimate responsibility for the delay lay at the feet of the plaintiffs. While the defendants had not delivered their evidence responding to the plaintiffs’ certification application, Herauf J.’s fiat made clear that there were matters to be sorted out before that step, or any other, was taken by them. The defendants had done what they had been directed to do, and what they could reasonably be expected to do, given the procedural order that had been made. The ball was squarely on the plaintiffs’ side of the court. e.

Alleged error: Finding that the defendants have been prejudiced by delay [ 77 ] Finally, the plaintiffs take aim at the Chambers judge’s conclusion that the defendants would be prejudiced in mounting their defences if the action were to proceed. The palpable and overriding error standard is applicable to a review of the Chambers judge’s specific findings of fact. [ 78 ] While the evidence supporting the Chambers judge’s findings of prejudice is not deep, it exists.

He observed that “prospective class members’ claims are about a product they purchased and consumed 13 years ago” and he inferred that the “passage of time will make it more difficult for [TWC] to prosecute its defence given that memories have faded and medical records and other evidence may have been misplaced or destroyed” (at para 25).

To borrow from ICC , this statement “aligns with common experience and reflects a reality recognized in the case law” (at para 33). [ 79 ] The Chambers judge also supported his finding of prejudice by referring to the evidence from TWC that only two of its employees involved with the Resolve product remained employed by it, and that it had changed computer systems and moved offices several times.

While, in the absence of evidence that a former employee cannot be found or will not cooperate, the fact that they have moved on shows no “meaningful prejudice” ( Taylor at para 47 ), except perhaps some additional costs, no case has been cited to suggest that it cannot be given any weight. [ 80 ] For these reasons, the Chambers judge did not err in finding that TWC would suffer prejudice if the action were allowed to proceed. [ 81 ] I also cannot find error by the Chambers judge simply because he concluded that it was appropriate to dismiss the action against Walmart for the same reasons as he gave in the longer TWC Fiat . [ 82 ] Walmart’s evidence of prejudice was more limited than that offered by TWC.

It relied on the passage of time alone and the assertion that “both personal and institutional memories at Walmart have inevitably faded over time”, the fact that it was required to disclose a contingent liability on its financial statements, and that the “continued existence of this lawsuit harms the reputation of Wal- Mart Canada”. I accept that this is not strong stuff.

However, it was not challenged in cross-examination or met with any competing evidence from the plaintiffs. [ 83 ] A court should be sensitive to the fact that an unresolved claim impacts the defendant’s professional, business and personal reputation, and may create significant and ongoing risk to their livelihood (see: ICC at para 45 (d)). This is true in a class action context as in any other.

In Duzan , Ball J. observed, in the context of a pending certification application, that “the class action portion of the claim should not be left to hibernate as a footnote” in an organization’s financial statements “on the speculative possibility” that it might someday be pursued again on the lackadaisical

schedule of the representative plaintiff who initiated the action (at para 43). However, the Chambers judge did not specifically mention the reputational damage that Walmart claims is associated with the existence of the class action and therefore I do not consider it in the context of this appeal. [ 84 ] There are three other important points to be made about the plaintiffs’ invitation that this Court intervene because of the Chambers judge’s assessment that the defendants will suffer prejudice if the action is allowed to proceed.

The first is that the argument amounts to one that we should simply substitute our opinion as to the weight to be assigned to the factors governing the exercise of this discretionary authority for that of the Chambers judge. This is not permitted under the applicable standard of review. [ 85 ] The second is that the plaintiffs’ argument about prejudice seeks to reverse one of the reforms that ICC introduced into the law. One of its refinements was to remove as a consideration whether the defendant would suffer “serious prejudice” if the claim was allowed to proceed as a discrete question.

ICC directs that, after inordinate and inexcusable delay is shown, a court considering an application to strike an action for delay should “move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context” (at para 45). This means that, while the existence and extent of the prejudice a defendant may suffer if the action proceeds remain relevant as factors bearing on the interests of justice question, prejudice is not a sine qua non for the dismissal of an action for delay.

This leads to the third, and final, point I would make. It is one that overarches all others in this appeal. [ 86 ] Delay in civil proceedings tends to have deleterious effects on the parties. Witnesses die, become unavailable or simply forget things. Documents disappear. Costs soar. However, the consequences of delay go beyond the parties to an action. As I said at the outset, unnecessary delay inevitably saps public confidence in the judicial process as a method for dispute resolution.

This is particularly true in the context of a proposed class action which, by its very nature, seeks to advance the interests of people other than the named plaintiffs who are in control of the prosecution of the action. [ 87 ] The decade-long delay in this proposed class action, during which not a single step was taken to move the claim ahead, will have a strong tendency to erode the public’s faith in the judicial process. In this case, the Chambers judge concluded that this, and the other factors he mentioned, meant that the plaintiffs’ action should be dismissed.

As I see it, there is nothing in the Chambers judge’s analysis that would justify this Court interfering with the bottom line of his judgment.

f. Conclusion on the merits [ 88 ] Given all this, the Chambers judge did not err when he dismissed this action for delay. V. CONCLUSION [ 89 ] The plaintiffs’ appeal must be dismissed. The respondents are each entitled to the costs of this appeal. TWC is also entitled to costs, in the fixed amount of $300, in relation to its application for the order requiring the plaintiffs to perfect their appeal. “Leurer J.A.” Leurer J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Tholl J.A.” Tholl J.A.