COURT OF APPEAL FOR ONTARIO DATE: 20221024 DOCKET: C69417

Roberts, Miller and Zarnett JJ.A.

BETWEEN

Glenn Johnson, Michael Smith and Timothy Hayne Plaintiffs (Respondents)

and

His Majesty the King in Right of Ontario Defendant (Respondent)

Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6

Counsel: Mirilyn R. Sharp, Nancy Sarmento Barkhordari, and Nital S. Gosai, for the appellant Donald Parker Rita Bambers and Lisa Brost, for the respondent His Majesty the King in Right of Ontario Jonathan Bradford, for the respondents Glenn Johnson, Michael Smith, and Timothy Hayne Andrew Eckart and Jasminka Kalajdzic, for the intervener The Class Action Clinic at the University of Windsor, Faculty of Law

Heard: March 30, 2022 by video conference

On appeal from the order of Justice A. Duncan Grace of the Superior Court of Justice dated April 16, 2021, and from the costs order dated May 10, 2021.

Zarnett J.A.:

Overview

[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.

[4] The primary question raised by this appeal is one that has not previously been settled by appellate authority in Ontario. It concerns the test that governs the discretion to extend the time to opt out. The follow-on question raised by the appeal is whether the motion judge committed a reversible error in denying an extension of time to the appellant to opt out of an ongoing class proceeding so that he could continue an individual action he commenced before he knew that there was a class proceeding.

[5] For the reasons that follow, I conclude that the test for an extension to opt out of a class proceeding requires the class member to show that their neglect in complying with the court-imposed deadline is excusable and that an extension will not result in prejudice to the class, the defendant, or the administration of justice. This test, previously recognized at the Superior Court level in Ontario in Young v. London Life Insurance Co., [2002] O.J. No. 5971 (S.C.), and derived from that applied in the United States, balances the important role the right to opt out plays in the class proceedings scheme with the importance properly attributed to court-imposed deadlines.

[6] In refusing the appellant’s request for an extension of time to opt out, the motion judge did not articulate or apply this test; he did not consider the issues of excusable neglect or prejudice referenced in Young. His approach to the discretion to extend was accordingly too narrow. As a proper application of the test and consideration of the relevant factors indicate that the extension should have been granted, I would allow the appeal.

Background

(1) The Consolidated Class Action

[7] In 2013 and 2016 respectively, the respondents Glenn Johnson and Michael Smith, and the respondent Timothy Hayne, each commenced a proposed class proceeding against the respondent Her Majesty the Queen in Right of Ontario (“Ontario”). [2]

[8] Each was certified as a class proceeding – the Johnson and Smith action in 2016, and the Hayne action in 2017. The actions were consolidated, and a consolidated statement of claim was filed on January 30, 2018.

[9] The class on behalf of whom the consolidated class action is brought consists of all persons who were incarcerated at the Elgin-Middlesex Detention Centre (“EMDC”) between January 1, 2010 and May 18, 2017. The consolidated class action seeks declaratory relief and damages for alleged negligence and violations of the Canadian Charter of Rights and Freedoms arising from conditions at, and the operation and management of, EMDC during that class period.

[10] The 2017 certification order provided that members of the class could opt out by providing a written indication pursuant to the provisions of a court-approved notice.

(2) The Notice Plan

[11] On March 22, 2018, the court approved the notice and a plan to disseminate it (the “Notice Plan”). The Notice Plan contemplated a short form of notice that was to be published in two London, Ontario newspapers, and a long form of notice that was to be (i) posted on class counsel’s website; and (ii) sent, using regular mail, to the “last known address of each class member”. I refer to the two forms of notices as the “Notices”.

[12] The long form of notice advised that class members who wanted to participate in the class action are automatically included and did not have to do anything at that time. It explained that if the action was successful, class members who had not opted out of the class action might be entitled to share in the amount of any award or settlement recovered, and that a class member who does not opt out of the class action “will be bound by the terms of any judgment or settlement and will not be allowed to pursue or continue an independent action with respect to these issues.”

[13] The long form of notice also provided that a class member who “opts out will not be entitled to participate in the class action”, and that to pursue or continue an individual action against Ontario with respect to the issues raised in the class action, a class member was required to opt out. It advised that in order to opt out, the class member had to complete and return an opt-out form, available from class counsel, by June 20, 2018.

[14] The short form of notice also advised of the right of class members to opt out, the method and implications of doing so, and the June 20, 2018 deadline.

[15] The short form of notice was published in the specified newspapers on March 22, 2018, with a further publication in one of the newspapers on March 24, 2018.

[16] In March 2018, class counsel sent the long form of notice by regular mail to class members at addresses shown on a list that had been provided by counsel for Ontario in December 2017.

(3) The Appellant and the Notices

[17] The appellant was an inmate at EMDC from July 2016 until August 2017, that is, within the class period. In August 2017, he was transferred to federal custody – the Joyceville Assessment Unit at the Joyceville Institution (“JAU”) in Kingston, Ontario – where he remained until 2019.

[18] The list of class members and their last known addresses, provided to class counsel by counsel for Ontario, included the appellant at an address on Parkside Drive in St. Thomas, Ontario. Class counsel mailed the long form of notice to him at that address. They have no record of that mail being returned.

[19] The appellant resided with his father at the Parkside Drive address before he was incarcerated at EMDC. He gave that address to EMDC staff upon his admission, and it was entered on Ontario’s Offender Tracking Information System (“OTIS”) as his primary residence. Although Ontario was aware that the appellant transferred to JAU in August 2017, it does not keep track of subsequent inmate movement while in federal custody.

[20] The appellant’s father was still residing at Parkside Drive in the time surrounding the March 2018 mailing of the long form of notice. The appellant was in touch with his father by telephone in that time frame, but did not recall any discussion about mail.

[21] The appellant denied actually receiving or seeing either of the Notices, or knowing about the class proceeding, at any time before the opt-out deadline in June 2018, or indeed, until receiving a letter from Ontario’s counsel in June 2020 after he had commenced his own action as described below.

[22] Class counsel received opt-out forms from 24 class members before the June 20, 2018 deadline. The appellant did not provide an opt-out form to class counsel by that date.

(4) The Appellant’s Individual Action

[23] On April 27, 2020, before he was actually aware of the consolidated class action, the appellant commenced an individual action against Ontario and employees of EMDC, as well as against the Attorney General of Canada and employees of JAU. The statement of claim alleges that in December 2016, while at EMDC, the appellant suffered a pressure necrosis injury to his left arm, accompanied by pain and swelling, but despite his complaints and the severity of his symptoms, he was not treated in a timely way. The appellant alleges that he was only taken to hospital approximately three days after the onset of his symptoms, by which time the muscle in his left arm had become necrotic, and he suffered renal failure and chronic kidney injury. He was required to undergo three emergency surgeries. Despite advice on his discharge from hospital that he would require physiotherapy and specialist intervention to regain some of his arm mobility, none were provided either while he was at EMDC or after his transfer to JAU. The appellant asserts that the defendants are liable in tort, for breach of fiduciary duty, and for infringements of his Charter rights. Substantial damages are claimed.

[24] By letter dated June 5, 2020, counsel for Ontario wrote to the appellant’s counsel, stating that the individual action overlapped with the consolidated class action, which included allegations that there was a failure to provide medical care to inmates at EMDC. The letter noted that the appellant had not opted out of the consolidated class action by the June 20, 2018 deadline. Ontario’s counsel asked that the individual action be discontinued against Ontario and against any proposed defendants who are employees of Ontario, at least as it pertained to events to the end of the class period (May 18, 2017).

The Motion Judge’s Decision

[25] Asserting that he first became aware of the consolidated class action as a result of the June 5, 2020 letter, the appellant moved for an extension of time to opt out.

[26] The motion judge dismissed the appellant’s request.

[27] The motion judge accepted that he had jurisdiction to extend the opt-out period, and noted the concession of the appellant’s counsel that it was a jurisdiction that was rarely exercised, referring to Young.

[28] The motion judge rejected the argument that the notice sent to the appellant had not been sent in accordance with the Notice Plan because it was sent to Parkside Drive when Ontario was aware he was in custody and had been transferred to JAU. He held that Parkside Drive was the last known address as that term was used in the Notice Plan. He held that even if he was wrong about that, the notice sent to Parkside “should have come to [the appellant’s] attention”.

[29] The motion judge also found that the appellant would not have opted out by June 20, 2018 even if he had received the notice advising of his right to do so. He referred to the fact that the appellant had not addressed that issue in his affidavit, and had said on cross-examination that if the notice of certification was brought to his attention, “I probably never would have filed my own lawsuit.” He also referred to an answer the appellant gave in re-examination [3] that if he had seen the notice he would have looked into the financial repercussions, because “I’m probably entitled to a lot more than what the claim itself is actually going after.” [4] The motion judge dismissed that answer because “[the appellant] deposed that he did not even know he had a basis for a claim against Ontario until he reviewed his medical records in the fall of 2018.”

[30] Finally, the motion judge addressed whether it is appropriate to extend the opt-out period where the class member asserts they did not know of the existence of their cause of action until after expiry of the opt-out deadline. He held that he did not have to answer that question. Analogizing the issue to one of discoverability under s. 5(1)(b) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, he found that the appellant’s implicit assertion that he could not reasonably have known of his cause of action until the fall of 2018 to be unsupported by any evidence.

ANALYSIS

(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.

(2) The Standard of Review

[36] An exercise of discretion under s. 12 of the CPA is entitled to significant deference on appeal. It will only be set aside if based on an error of law or an erroneous principle, a palpable and overriding error of fact, consideration of irrelevant factors or the omission of factors that ought to have been considered, or if the decision was unreasonable: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, 115 O.R. (3d) 653, at paras. 40, 47.

(3) Discussion

[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. But those cases, which consider whether any misconduct or misinformation to class members affected their voluntary decision to opt out according to a notice they actually read and understood [6], raise different issues from the circumstances present here, where a class member is not trying to reverse a prior opt-out decision but is seeking an extension of time to opt out. In fairness to the motion judge, the test for an extension of time to opt out in these circumstances has not been extensively explored in Ontario case law. Nevertheless, it was set out in Young, and, in my respectful view, should have been applied. The motion judge’s failure to use the test and thus to consider or apply the appropriate factors justifies appellate interference.

a) The Test

[38] The motion judge did not identify exactly the test he was applying. He referred to Young for the proposition that the power to grant an extension of time to opt out will rarely be exercised. However, the fact that the discretion to extend the time to opt out is one that is rarely exercised is a result of the test; it is not the test itself. The motion judge did not go on to refer to the test which Young actually articulates, or to the case law cited in Young that explains it.

[39] In the course of his endorsement in Young, Winkler J. (as he then was) stated:

I would not however grant leave to opt out late. There is no excusable neglect on these present facts and there is prejudice. See Re PaineWebber Limited Partnerships Litigation, 147 F. (3d) 132 (2d Cir. 1998). An extension of time to opt out should only be allowed in the rarest circumstances where the above test is met. [Emphasis added.]

[40] The excusable neglect/no prejudice test adopted in Young was derived from PaineWebber, a case decided under the United States Federal Rules of Civil Procedure, which govern federal civil proceedings including class proceedings. The court in PaineWebber explained that a party seeking an extension of time to opt out must show that the entire period of delay, from the missed deadline to opt out through the making of the request for an extension, was the result of excusable neglect. It described excusable neglect as an elastic concept that may be found even in circumstances of carelessness and omissions within the class member’s control, as long as good faith and a reasonable basis for non-compliance are present. The PaineWebber court further explained that the court will also consider the degree of prejudice to the opposing party that would flow from granting the extension.

[41] The approach in PaineWebber is further elucidated by its reliance on a decision of the United States Supreme Court that interpreted a bankruptcy rule permitting extensions of time for excusable neglect: Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993). Noting the bankruptcy rule’s similarity to the Federal Rules of Civil Procedure (applied in PaineWebber), the court in Pioneer described excusable neglect as an elastic and equitable concept that takes into account all relevant circumstances. It permits a court to extend time where doing so advances the purposes of the legislative scheme even in the face of some level of carelessness, inadvertence, mistake, or circumstances within the defaulting party’s control. The court considering an extension must, however, also advert to whether it can be granted without the danger of prejudice to the parties or to the integrity of the process (which would be present if the party requesting the extension was not acting in good faith or had flouted the court-ordered deadline): at pp. 388-392, 395.

[42] The only other indicator of the source of the principles the motion judge may have been applying is found in his reference to the British Columbia Supreme Court’s decision in Gregg v. Freightliner Ltd., 2012 BCSC 415, 97 C.C.P.B. 72. He noted that, based on his findings, the case before him was distinguishable from Gregg.

[43] The issue in Gregg was whether certain individuals should be able to opt in to a class proceeding and participate in a settlement of it that had already been made. The court permitted late opt-ins “[w]here notice was mailed to the complainant’s wrong address and the evidence satisfies [the court] that [the individual] was not otherwise made aware of the need to opt-in before the applicable deadline and would have exercised that option had he known…”: at para. 80.

[44] The appellant argues that the motion judge may have taken from Gregg that it was necessary for the appellant to show, in a request for a late opt-out, what he would have done by the opt-out deadline, and that any analogy to what Gregg found was required to permit a late opt-in to participate in an already negotiated settlement in the specific circumstances of that case is inapt here. I agree with the appellant that the circumstances and issue in Gregg were materially different from the case at bar, and the specific elements noted in Gregg do not constitute the test for a late opt-out in Ontario. A requirement to show what the appellant would have done by the opt-out deadline is not found in Young or the doctrine it relied on, and cannot be drawn from Gregg.

b) The Excusable Neglect / No Prejudice Test Should be Affirmed

[45] The parties and the intervener suggested various factors that should be considered as relevant on the question of when the discretion to extend the time to opt out should be exercised. There is no appellate authority in Ontario that has settled this question, expressly considered the excusable neglect/no prejudice test adopted in Young, or definitively articulated any other test. [7]

[46] In my view, we should take the opportunity to confirm that the excusable neglect/no prejudice test is to be applied on a motion to extend the time to opt out. It balances, on the one hand, the importance of the right to opt out, and, on the other, the importance of there having been a court-ordered deadline for doing so.

[47] The choice to opt out is a serious one for a class member, as it involves choosing to forego any remedy that might be obtained in the class proceeding and being limited to the pursuit of the class member’s rights against the defendant on his or her own and at his or her own risk: Pet Valu, at para. 42. It gives a class member the opportunity to privilege their own litigation autonomy – to develop their own strategy, retain their own counsel, settle, or litigate as they decide – over the benefits of the class proceeding that is conducted for their benefit, but outside their control: Johnson v. Ontario, 2021 ONCA 650, 158 O.R. (3d) 266, at para. 16.

[48] The right to opt out is fundamental not just to a class member, but to the integrity of the class proceedings scheme under the CPA as a whole. As the intervener aptly puts it, “[t]he opt-out mechanism legitimizes a procedure that would otherwise be contrary to basic procedural fairness and principles of natural justice: it is the only way a person can exclude themselves from litigation that affects their rights but over which they have no control.”

[49] This court has endorsed the opt-out right’s characterization as “[t]he primary protection for the absent class members in the class proceeding” and has noted “[i]t is axiomatic that no class member need participate in a class action against his or her will”: Pet Valu, at para. 41, citing 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), , 62 O.R. (3d) 535 (S.C.J.), aff’d (2004), , 70 O.R. (3d) 182 (Div. Ct.), leave to appeal to Ont. C.A. refused, M31109 (May 11, 2004), at para. 75. Underscoring the importance of the opt-out right, this court has stressed that a class member’s decision to participate in or abstain from a class proceeding must also be an informed and voluntary one, free from undue influence: Pet Valu, at para. 41.

[50] Considered in isolation, the importance of the opt-out right, both to a class member and to the integrity of the class proceedings scheme, would pull strongly in favour of a test for extensions that permits them liberally. But just as protecting the right to opt out is an important consideration, so is the fact that the CPA provides for the opt-out right in a time-limited way. As noted above, the CPA mandates that the court impose a deadline for opt-outs. An open-ended test for extensions would effectively rewrite that legislative choice.

[51] Respect for court orders is integral to the administration of justice. Court-imposed deadlines have purposes, are meant to be treated seriously, and are intended to have consequences. The deadline for opting out promotes certainty in the class proceeding. It defines, as at the deadline, the class members who are not participating, and thus those who are. Were there no deadline, or if it could be flouted, cavalierly ignored, or strategically treated as an invitation to “wait and see” [8], these matters would be an uncertain and moving target, to the potential prejudice of those with carriage of the class proceeding who must make decisions as to how to conduct it on behalf of the participating class members, and to defendants in deciding how to respond to it.

[52] In my view, the importance of the opt-out right and of the deadline for opting out are both properly respected when a court grants extensions only where (i) the delay in opting out is due to excusable neglect – in good faith and with a reasonable basis – and (ii) the court has considered whether any prejudice will accrue to participating class members, the defendant, or the integrity of the process, from permitting the late opt-out. This approach ensures that in a justifiable case a class member who does not want to be part of the class proceeding may have their litigation autonomy restored. But it also respects the need to ensure the court’s processes – its orders – are taken seriously, and that those who have planned and taken their courses of action on the strength of them do not suffer any prejudice.

(4) Application of the Test in the Appellant’s Case

a) Excusable Neglect

[53] As I have noted, the motion judge did not articulate the required test. Nor can he be taken to have applied it.

[54] In my view, whether the appellant demonstrated a reasonable basis in good faith for the delay in seeking to opt out is a different question from whether the Notice Plan was adequate. I agree with the motion judge that the Notice Plan did not have to guarantee – indeed, it could not – that every class member would actually receive the Notices informing of the right to opt out. It only had to be designed to make it likely that the information will reach the intended recipients: Canada Post Corp. v. Lépine, 2009 SCC 16, [2009] 1 S.C.R. 549, at para. 43. I also agree with Ontario that a motion to extend the time to opt out is not the forum to relitigate the adequacy of a Notice Plan that was approved by a court order which has not been appealed. However, that the Notice Plan was adequate does not dispose of the excusable neglect issue.

[55] Similarly, although I would not disturb the motion judge’s finding that the notice sent to the Parkside Drive address complied with the Notice Plan, because it was the appellant’s last known address for those purposes, this is also not dispositive.

[56] The question is not whether, if the class proceeding had settled or resulted in a judgment before the appellant brought his motion to extend, the appellant would have been bound. A judgment or settlement may be binding on class members who did not actually receive the notice, as long as an adequate notice plan was followed: 3113736 Canada Ltd. v. Cozy Corner Bedding Inc., 2020 ONCA 235, 150 O.R. (3d) 83, at para. 31; Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 D.L.R. (4th) 467, at para. 86. Had the appellant moved to extend the time for opting out after judgment or settlement, his request would most likely have been denied on the basis of prejudice.

[57] But here, there is no judgment or settlement. The appellant is not trying to escape the binding effect of something that has happened in the class proceeding. He wants to opt out before that happens. The question is whether he should be permitted to do so.

[58] The motion judge did not reject the appellant’s evidence that he did not actually see the short form of notice when published or receive the long form of notice that was mailed, and that he did not learn of the class proceeding until Ontario’s counsel’s letter of June 2020. The appellant was incarcerated when the short form of notice was published and there was no suggestion he should have seen it. The long form of notice was sent to an address at which he was not physically present and to which he did not return during the opt-out period, or indeed, until after his release from custody in 2019. His subsequent commencement, through counsel, of an independent action without addressing the consequences of there being a class proceeding is consistent with his lack of awareness of the class proceeding, let alone of an opt-out deadline or requirement.

[59] I do not take the motion judge’s finding that the appellant should have received the long form of notice because his father lived at the address where it was sent to be a finding that the appellant himself fell below the standard of excusable neglect, acted other than in good faith, or lacked a reasonable basis for his delay in seeking to opt out. This is not a case like PaineWebber, where the class member had not discovered the notice notwithstanding having a period of nine months to sort through the mail in his own home (where the notice was received) before he brought a motion to extend the opt-out period. As the PaineWebber court noted, that went well beyond excusable neglect. Here, there was nothing in the evidence to suggest the appellant should have been aware that he needed to implement a system to ensure that his father monitored his mail and brought to his attention, while in custody, notices pertaining to matters such as potential class actions or that he had control over whether that would be done.

[60] There was no assertion of any delay in requesting an extension of time to opt out after the appellant became aware of the class proceeding. Applying the correct test, the appellant established that the delay in opting out arose from excusable neglect.

[61] In my view, since the appellant did not actually receive the Notices, and provided a reasonable basis for the delay in actually requesting an opportunity to opt out, the evidence about what he would have done had he received the Notices was of little value, and ought not to have been used as it was by the motion judge. The appellant was not required to prove he would have opted out based on what he knew at the June 20, 2018 deadline. The question was whether the fact that he did not opt out then, but was requesting an exercise of discretion to do so late, was the result of excusable neglect. With respect, the motion judge’s reference to the test under s. 5(1)(b) of the Limitations Act was not germane to that question.

b) Prejudice

[62] The motion judge did not address or make any finding of prejudice to the class, to Ontario, or to the integrity of the process or the administration of justice.

[63] There was no evidence of any judgment or settlement of the class proceeding, or even of steps in that direction, that might have been taken in reliance on the appellant being a participating class member or the number of opt-outs not exceeding those who had done so by the June 2018 deadline. Class counsel did not oppose the appeal, a strong indicator that an extension of the time for the appellant to opt out would occasion no prejudice to the class. Ontario did not point to any prejudice it would suffer.

[64] Nor is this a case where the appellant’s behaviour shows any flouting of, a cavalier attitude toward, or a strategic wait-and-see approach to, the court-ordered opt-out deadline, such that granting him an extension would cause prejudice to the integrity of the process or the administration of justice.

Conclusion

[65] The appellant satisfies the applicable test. I would allow the appeal, set aside the orders of the motion judge, and make an order extending the time within which the appellant may opt out of the consolidated class action to 30 days following the release of these reasons.

[66] If the appellant and Ontario are unable to agree on costs as between them, they may make written submissions not exceeding three pages each. The submissions of the appellant shall be delivered within 15 days of the release of these reasons; those of Ontario within 10 days thereafter. Any reply is to be delivered by June 23, 2025. These submissions are to be uploaded to Case Center and provided to my judicial assistant. There shall be no costs for or against the intervener.

Released: October 24, 2022 “L.R.” “B. Zarnett J.A.” “I agree. L.B. Roberts J.A.” “I agree. B.W. Miller J.A.”

Footnotes:

[1] Including an unfavourable judgment.

[2] The title of proceedings at this court has been modified to style the respondent as “His Majesty the King in Right of Ontario”, following the death of Queen Elizabeth II and the King’s accession.

[3] The motion judge stated that the question that elicited this answer was asked over Ontario’s objection but did not rule that the objection was properly made.

[4] The appellant went on to explain that he would probably have opted out so that he could pursue his own claim given these considerations.

[5] This broadly worded power clearly extends to staying actions by class members who have not opted out of the class proceeding. That is the premise upon which the court-approved long form of notice to class members in this case indicated that class members who have not opted out may not pursue independent actions. The court-approved long form of notice also provided that a class member who wished to commence or continue an independent action must opt out, the premise being that the s. 13 power would not be used in these circumstances to stay an action by a class member who had opted out. This is consistent with the rationale of the jurisprudence that the s. 13 stay power will not generally be used to stay an independent action commenced by a plaintiff who for good reasons does not want to be part of a class proceeding if one is certified: Workman Optometry v. Aviva Insurance, 2021 ONSC 3843, 156 O.R. (3d) 793, at paras. 9-13.

[6] See Cannon, at paras. 11, 13.

[7] Lower court cases cited to us have dealt with extensions of time to opt out without expressly articulating the test they were applying. See, for example, Brazeau v. Canada (Attorney General), Reddock v. Canada (Attorney General), 2021 ONSC 4294, at paras. 23-27; Somwar v. Fly Jamaica, 2020 ONSC 2140.

[8] See Cannon, at para. 2.