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Top 10 Business Decisions
BARBIERO V. POLLACK, 2024 ONCA 904
THE ONTARIO COURT OF APPEAL
has fundamentally altered the legal
landscape for dismissing actions due
to delay, departing from the long-
standing Langenecker v. Sauve framework
in Barbiero v. Pollack. The court dismissed
a 21-year-old certified class proceeding
involving allegations that a physician
unlawfully injected liquid silicone into
patients' lips and facial contours.
Writing for the court, Justice Brown
concluded that the Langenecker approach
fostered an unhealthy "indifference to
delay" incompatible with the Supreme
Court's call in Hryniak v. Mauldin for
a "culture shift" prioritizing prompt
dispute resolution. The court established
that where delay exceeds five years from
commencement – the benchmark set by
Rule 48.14(1) – an action enters "inordi-
nate" territory.
Critically, the court held that inordinate
and inexcusable delay alone suffices for
dismissal, rejecting Langenecker's require-
ment that such delay only creates a rebut-
table presumption of prejudice. Dena
Varah of Lenczner Slaght LLP, counsel
for the physician, noted that this decision
means plaintiffs "can no longer allow
an action to languish for years and then
• Anna Barbiero > Roy O'Connor LLP >
Peter L. Roy and J. Adam Dewar
• Dr. Sheldon Victor Pollack > Lenczner Slaght
LLP > Dena Varah and Derek Hooper
CLIENTS > FIRMS > LAWYERS
rebut the presumption of prejudice to
keep it alive."
The court emphasized that initiating
parties bear the burden of advancing
proceedings to final disposition, noting
the absence of any affidavit explaining
the representative's two-decade delay. This
ruling signals heightened judicial intoler-
ance for litigation delay and reinforces that
class proceedings remain subject to expe-
ditious resolution requirements under the
Rules of Civil Procedure.
