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Class Action (Ont) - Opting-Out. Johnson v. Ontario
In Johnson v. Ontario (Ont CA, 2022) the Court of Appeal sets out basics of opting-out by class action members:[1] A class proceeding has implications for members of the class for whom it is brought – implications that apply to all class members except those who have opted out of the class proceeding.
[2] A class member who has not opted out may benefit from, and will be bound by, any judgment on the common issues[1] or any settlement of the class proceeding. A class member who has not opted out may also be prohibited from pursuing an independent action relating to the same subject matter as the class proceeding. These consequences do not apply to a class member who has opted out.
[3] A class member who wishes to forego the benefits and binding effect of the class proceeding, and retain the ability to pursue an independent action, has an unfettered right to do so by opting out before the deadline set by the court when it certifies the class proceeding. Class members are to be notified of the deadline, and procedure for opting out, by a notice approved by the court. After the court-imposed deadline for opting out has passed, a class member who wishes to opt out must request that the court exercise a discretion to extend the time for the class member to do so.
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(1) Statutory Framework
[31] The Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”), sets out the effect of a class proceeding on class members who do not opt out. It provides (with limited exceptions) that a judgment on the common issues in a class proceeding binds every class member who has not opted out: ss. 27(2)(a), (3). It also provides that, unless the court orders otherwise, a settlement of a class proceeding that has been approved by the court binds all class members who have not opted out: s. 27.1(4).
[32] The CPA also gives the court the power to restrict independent actions by class members that overlap with the class proceeding through the power, on its own initiative or the motion of any party, to “stay any proceeding related to the [class proceeding]”: s. 13.[5]
[33] The CPA confirms the right of a class member to opt out if a specified procedure is followed and provides for the imposition of a deadline for doing so. Section 9 provides that “[a]ny member of a class involved in a class proceeding may opt out of the proceeding in the manner and within the time specified in the certification order.” Section 8(1)(f) requires a certification order to “specify the manner in which class members may opt out of the class proceeding and a date after which class members may not opt out.”
[34] The CPA contemplates notice of the certification of a class proceeding being given to class members so they can understand the proceeding, its financial consequences, its binding effect if they do not opt out, and their right to opt out. Section 17 provides that unless dispensed with by the court, notice of certification shall be given by the representative plaintiff to class members and directs the court to make an order setting out the means and content of the notice. Subsection 17(5) states that unless ordered otherwise, the notice shall, among other things, describe the class proceeding and its possible financial consequences to class members, state that the judgment, whether favourable or not, will bind all class members who do not opt out, and shall “state the manner by which and time within which class members may opt out of the proceeding”.
[35] All parties agree that s. 12 of the CPA, which confers on the court a power to “make any order it considers appropriate respecting the conduct of a proceeding under [the CPA] to ensure its fair and expeditious determination” embraces a discretion to extend the time to opt out that has been set by court order.
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[37] Prior Ontario cases have canvassed circumstances in which a class member’s actual decision to opt out may be invalidated so that the class member may opt back into the class proceeding; Pet Valu was one such case. Cannon v. Funds for Canada Foundation, 2014 ONSC 2259, is another.
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