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.