Jonathan Sattler Bradford

The plaintiff brought a motion seeking court approval of a retainer agreement and an order for the defendants to pay Class Counsel's legal fees and disbursements.

This motion was brought after the plaintiff withdrew a certification motion in a class action alleging an electrical defect in Class Vehicles.

The plaintiff argued that the defendants' subsequent voluntary offer of an enhanced warranty to Canadian customers, mirroring a U.S. settlement, constituted "success" attributable to the litigation, thereby entitling Class Counsel to fees.

The defendants contended that the Canadian warranty enhancement was independent of the Canadian litigation, consistent with their corporate practice of coordinating benefits with U.S. settlements regardless of parallel Canadian actions.

The court found no evidence that the benefits stemmed from the Canadian action and concluded that the class proceeding had not been "successful" as defined by the Class Proceedings Act, which primarily links success to judgments or settlements.

Consequently, the court dismissed the plaintiff's motion for fees and disbursements.

The appellant, a class member, sought an extension of time to opt out of a consolidated class action after commencing an individual action without knowledge of the class proceeding.

The motion judge denied the request.

The Court of Appeal for Ontario clarified and affirmed the test for extending the time to opt out: the class member must demonstrate excusable neglect for the delay and show that granting the extension will not result in prejudice to the class, the defendant, or the administration of justice.

The Court found the motion judge erred by not applying this test and by misinterpreting the appellant's evidence.

The appeal was allowed, and the appellant was granted an extension to opt out, as he demonstrated excusable neglect and no prejudice was shown.