Court File and Parties
COURT FILE NOs: CV-18-00609498-00CP DATE: 20200407 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Somwar, Tulsidai Somwar and Stephanie Somwar, Plaintiffs – AND – Fly Jamaica Airways Ltd., The Boeing Company, Basil Ferguson, Keone Bryan, John Doe #3 Aircraft Maintenance Provider, John Doe #4 Aircraft Maintenance Mechanic, Defendants
BEFORE: E.M. Morgan J.
COUNSEL: A. Kluchuk, for the moving party, Loyd Mark Noel V. Lord, for the Plaintiffs C. Hunter, for the Defendant, Fly Jamaica Airways Ltd. R. Fenn, for the Defendant, The Boeing Company
HEARD: April 6, 2020
Permission to Opt-Out
[1] A class member, Loyd Mark Noel, brings this motion for permission to opt out of the class proceeding despite the fact that the deadline for doing so has passed.
[2] Like the other class members, Mr. Noel was a passenger aboard Fly Jamaica Airways flight OJ256 that crash landed at Guyana’s Cheddi Jagan International Airport on November 9, 2018. Mr. Noel has brought his own individual lawsuit in respect of that incident, in which he states that he was seriously injured and claims damages in respect of those injuries. Mr. Noel’s action was commenced on June 26, 2019 in Toronto, with the Court File No. CV-19-00622704 (the “Individual Action”). The defendant in the Individual Action is Fly Jamaica Airways.
[3] The present action was certified under the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”) on September 19, 2019. The certification Order set a deadline of January 6, 2020 for class members to opt out of the class proceeding.
[4] Despite intending to proceed with his Individual Action, Mr. Noel failed to deliver an opt out form by the applicable deadline. This appears to have been an inadvertent error. Mr. Noel wants to opt out of the class proceeding and seeks permission to do so now.
[5] Neither Plaintiffs’ counsel nor any of the Defendants’ counsel oppose Mr. Noel’s motion. His opting out will not affect the progress of the class proceeding, which is continuing on its course.
[6] The fact that Mr. Noel had started the Individual Action prior to certification and is continuing with that action indicates that his decision to opt out is not a recent change of heart, but rather is a result of having inadvertently missed the January 6, 2020 deadline. Since no one opposes his motion, and since this relief will have no impact on any other party or class member, I am willing to grant him the permission he seeks.
[7] This permission is being granted as an exercise of my discretion under section 12 of the CPA to manage these proceedings. It applies to no other class member.
[8] Mr. Noel is hereby permitted to opt out of this class proceeding and proceed with the Individual Action.
Morgan J.
