Executive Summary: Key Legal and Evidentiary Issues

• Strict operation of section 29.1 of the Class Proceedings Act, 1992 (CPA) required dismissal of the proposed class action where a final and complete certification motion record was not filed within one year of commencement.
• Uploading materials to Case Centre and relying on informal email communications from the court did not amount to a court-approved timetable or a formal endorsement satisfying section 29.1(b)–(c) CPA.
• The certification record was substantively incomplete because it omitted a litigation plan, an indispensable statutory requirement under section 5(1)(e)(ii) CPA and central evidentiary component of any certification motion.
• Attempts by plaintiff’s counsel to append a litigation plan later as a schedule to a factum could not “cooper up” a deficient motion record, because necessary evidentiary material must be properly included in the motion record itself.
• The proposed new representative plaintiffs were found to be disengaged from the litigation and unfamiliar with the litigation plan, undermining their suitability as representative plaintiffs and leaving the class action effectively without a proper representative.
• The court dismissed both the motion to amend and substitute new plaintiffs and the entire action for delay, and ordered the plaintiff to pay the defendants all-inclusive costs of $83,630 in respect of the successful motions.

Background and parties

This case arises from a proposed class action brought by plaintiff Omar Kalair against lawyer Ryan Naimark and Ryan Naimark Professional Corporation, operating as Naimark Law Firm, in the Ontario Superior Court of Justice. The proposed class consists of former clients of the law firm who allege they were overcharged for disbursements, with particular emphasis on photocopying charges. The defendants are a personal injury law firm and its principal, whose billing practices are challenged on the basis that disbursement charges, including photocopies, were allegedly excessive. The original representative plaintiff, Mr. Kalair, had previously retained the defendants with respect to a personal injury claim arising from a March 25, 2013 motor vehicle accident on Thorncliffe Park Drive. The relationship between him and the firm, including past proceedings and the handling of settlement funds and disbursements, is detailed in the proposed Amended Statement of Claim. In this proceeding, however, the court’s reasons focus not on the underlying merits of the disbursement overcharge allegations, but on procedural compliance with the Class Proceedings Act, 1992 (CPA), in particular section 29.1, and the adequacy of the litigation plan and representative plaintiffs.

Nature of the proposed class action

The proposed class action targets alleged systemic overcharging of disbursements by the defendant law firm towards its clients. The pleading states that, in Mr. Kalair’s matter, the defendants resolved his underlying personal injury claim by settlement and then paid themselves their fees and disbursements out of settlement funds held in trust. The claim alleges that he was overbilled for photocopying, both in terms of the rate per page and the number of pages, and further asserts that similar billing practices affected other clients of the firm. Two individuals—Tyler Couchman and Terrence Montrose—are proposed as replacement representative plaintiffs after Mr. Kalair indicated he could no longer continue in that role. The proposed Amended Statement of Claim identifies how much each of them was charged in disbursements, and in Mr. Couchman’s case juxtaposes this amount against his settlement recovery to imply a disproportionate level of disbursements. Beyond those figures, however, the pleading provides very little detail about their respective retainers, the nature of their underlying claims, the existence of trust funds, or any independent legal advice they may or may not have obtained. The court notes that this lack of particularized material facts about the proposed new plaintiffs stands in sharp contrast to the relatively detailed narrative about the exiting plaintiff, Mr. Kalair.

Procedural history and the one-year deadline under section 29.1 CPA

The central issue in the decision is compliance with section 29.1 of the CPA, which imposes a strict one-year deadline after issuance of the claim within which certain procedural steps must occur to avoid automatic dismissal for delay. The Notice of Action was issued on June 21, 2024. Under section 29.1, the action is to be dismissed unless, within one year of commencement, one of several events occurs: (a) filing of a final and complete certification motion record; (b) an agreed written timetable filed with the court; (c) a court-established timetable; or (d) other steps set by regulation. Here, no formal timetable was agreed between the parties or endorsed by the court. Two weeks before the one-year anniversary, on June 6, 2025, plaintiff’s counsel served a certification motion record on defendants’ counsel but did not file it with the court office. The court had previously scheduled January 26, 2026 for pre-certification motions on pleadings and substitution of a new representative plaintiff, but no certification hearing date had been set. Plaintiff’s counsel then advised the court that he encountered difficulty uploading the certification materials to Case Centre and, to overcome this, used the January 26, 2026 date as the hearing date for certification, even though that date had been reserved for pre-certification issues only. Defense counsel objected to designating that day for certification, noting that it had been agreed solely for pre-certification matters. On June 24, 2025—three days after the one-year mark—the judge’s assistant, at the judge’s direction, emailed counsel indicating that for purposes of section 29.1 it was acceptable for plaintiff’s counsel to use January 26, 2026 as the motion date “in order to get the certification motion material filed,” while clarifying that certification itself would ultimately have to be rescheduled and heard later because that date would be consumed with pleadings and other preliminary issues. Relying on this email, plaintiff’s counsel filed the certification record, listing January 26, 2026 as the certification hearing date. In hindsight, however, the court emphasized that this scheduling email was an administrative convenience, not a judicial endorsement or formal timetable within the meaning of section 29.1, and that it was sent after the one-year deadline had already expired. The judge acknowledged that plaintiff’s counsel’s misunderstanding stemmed from a miscommunication and did not fault him personally, but held that the statutory requirements remained strictly enforceable.

Strict statutory framework and absence of judicial discretion

A key legal issue is whether section 29.1 of the CPA leaves any room for judicial discretion to relieve against non-compliance. Earlier case law had produced some uncertainty, but the Ontario Court of Appeal, particularly in Tataryn v. Diamond & Diamond Lawyers LLP, made clear that there is “no judicial discretion engaged in the one-year time parameter” and that section 29.1 must be strictly applied. Against this backdrop, Justice Morgan reiterated that a judge may set a certification schedule within the one-year period, but cannot deem a late or incomplete certification record as compliant, nor extend the deadline once it has passed. Even if plaintiff’s counsel’s filing on June 24, 2025 could somehow be treated as being within time, the record would still have to qualify as “final and complete” to satisfy section 29.1(a). The court stressed that the statute requires more than a placeholder filing: a certification motion record that is partial or lacking in essential components does not meet the requirement, regardless of when it is filed. Consequently, the court had to examine the substance and completeness of the record itself, not just its timing.

Deficiencies in the certification record and the litigation plan

The court found the certification record to be incomplete because it omitted an indispensable component: a litigation plan, which is required under section 5(1)(e)(ii) of the CPA for any motion seeking certification. Citing appellate authority, the judge noted that a litigation plan that is unworkable or purely boilerplate is itself problematic and does not meet the statutory standard, making the complete absence of a litigation plan a fundamental deficiency. Previous decisions have emphasized that “[a] deficient litigation plan can… be rectified. No litigation plan, however, fails to meet the basic requirements of the CPA” and that dispensing with the requirement for a litigation plan would be an error. Here, the plaintiff’s certification record, as filed, simply did not include any litigation plan at all. Defendants later brought a motion to dismiss under section 29.1, pointing out that even many months after filing, a final and complete motion record that included a litigation plan had still not been served or filed. In response, plaintiff’s counsel attempted to cure the omission by appending a proposed litigation plan as Schedule “A” to his responding factum on the dismissal motion. The court held that this attempt could not “cooper up” the record after the fact. As a matter of motion practice, evidence must form part of the motion record itself and be properly introduced through affidavits; it cannot be added as a schedule to a factum or similar advocacy document. This principle, drawn from authorities on summary judgment and other motion contexts, was applied by analogy: just as a party cannot retroactively complete an evidentiary record by attaching documents to a factum, a plaintiff in a proposed class action cannot retroactively satisfy the statutory requirement for a litigation plan by appending it to a later factum, especially outside the one-year period prescribed by section 29.1.

Suitability of the proposed representative plaintiffs

Beyond the incomplete record, the court considered whether the proposed new representative plaintiffs, Mr. Couchman and Mr. Montrose, were suitable to carry the responsibilities of representative plaintiffs. Both men were cross-examined about their understanding of those duties and, specifically, the concept of a litigation plan. Their evidence revealed a basic lack of awareness of what a litigation plan is and of their role in developing or adopting such a plan. In exchanges on examination, Mr. Couchman could only identify “seek counsel” as a responsibility of a representative plaintiff and could not speak to the litigation plan at all, with his counsel intervening to characterize the question as too technical. Similarly, Mr. Montrose stated that he relied on his lawyer to guide him and did not articulate any personal plan to manage the class action process or to notify class members. The court underscored that case law treats a litigation plan as a critical element of certification and expects it to reflect the representative plaintiff’s own plans and evidence, even if drafted by counsel. If the plan is purely counsel-driven and not genuinely adopted or understood by the representative, that person risks being an “empty vessel” for counsel’s strategy. When combined with the very sparse material facts pled about Mr. Couchman and Mr. Montrose’s retainers, background, and dealings with the defendants, their testimony suggested that counsel was effectively steering the litigation alone, without active, informed participation from true representative plaintiffs. This further undermined the adequacy of the certification record and reinforced the conclusion that the proposed class action did not have a proper representative plaintiff in place.

Outcome on the motions and costs

Justice Morgan dealt with two main motions heard together: the defendants’ motion to dismiss the action for delay under section 29.1 of the CPA, and the plaintiff’s motion to amend the Statement of Claim and substitute two new representative plaintiffs in place of Mr. Kalair, who had indicated he could no longer devote time to being a representative plaintiff. Given the strict statutory regime, the incomplete certification record, the absence of a litigation plan at the relevant time, and the unsuitability and disengagement of the proposed new representative plaintiffs, the court refused the plaintiff’s request to amend and substitute and concluded that the action could not survive. The judge also noted that, in light of this disposition, it was unnecessary to decide the defendants’ motions to strike certain evidence and to quash a Notice of Examination; no costs were ordered on those subsidiary motions. In the result, the court dismissed the action for delay pursuant to section 29.1 of the CPA and denied the motion to amend and substitute plaintiffs. On costs, the defendants were recognized as the successful parties on the dismissal motion and on the response to the plaintiff’s amendment/substitution motion. After reviewing the parties’ costs outlines and applying Rule 57.01 and section 131 of the Courts of Justice Act, the court fixed costs on a partial indemnity basis. Taking into account the complexity and importance of the issues, the intertwined nature of the motions, and the principle of fair indemnification, the court ordered that the plaintiff pay the defendants an all-inclusive amount of $83,630 in costs, which stands as the total monetary award in favour of the successful defendants in this proceeding.