COURT FILE NO.: CV-19-00631903-00CP
DATE: 20221005
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C. Plaintiffs
- and -
MARTIN JUGENBURG and DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION Defendants
Bernard T. Verbanac for Zohra Sakhizada, Class Member
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
ENDORSEMENT
[1] This is a certified class proceeding in an action brought by G.C., J.C., and A.C.[^1]
[2] Zohra Sakhizada, who is a Class Member, brings a motion to extend the opt-out period so that she can opt out and pursue an individual action against the Defendants. Her motion is for:
a. An Order and Declaration that the untimely opt-out form submitted by Zohra Sakhizada on April 19, 2022, is considered valid and that Zohra Sakhizada is not a member of the Class in this certified class action so as to allow Zohra Sakhizada, to opt out of this Class Proceeding and to proceed with her Individual Action under the Court File No: CV-21-00000511-0000.
b. costs of this motion, if opposed; and
c. such further and other Relief as to this Honourable Court may seem just.
[3] The background to the motion is as follows:
On June 27, 2019, Ms. Sakhizada’s lawyer advised the Defendants of her intent to pursue legal action.
On July 12, 2019, Lenczner Slaght, lawyers for Dr. Jugenburg, advised that they have been retained to represent the Defendants.
Around this time, Ms. Sakhizada had informal conversations with Class Counsel advising that she did not want to be a member of the Class Proceeding, as she was advancing an individual claim against the Defendants, and that she was represented by a lawyer who was already in communications with the lawyers for the Defendants.
G.C. and J.C. commenced this action on November 28, 2019.
On February 21, 2020, with the joinder of A.C. as a co-plaintiff, an amended Statement of Claim was delivered by G.C., J.C., and A.C.
On April 8, 2021, Ms. Sakhizada commenced an action for damages against Martin Jugenburg and Dr. Martin Jugenburg Medicine Professional Corporation under the Court File No: CV-21-00000511-0000. The action claims damages for the alleged use of surveillance cameras at the Defendants’ clinic. The subject matter of the action is the same as the subject matter of the certified class action.
On May 10, 2021, G.C., J.C., and A.C.’s action was certified as a class action.
The Certification Order provided that the deadline to opt out of the Class Proceeding was October 4, 2021.
Ms. Sakhizada failed to submit an opt-out by the opt-out deadline.
On April 19, 2022, the Defendants, Martin Jugenburg and Dr. Martin Jugenburg Medicine Professional Corporation, delivered their Statement of Defence in Ms. Sakhizada’s action and she submitted an opt-out form in the certified class action.
[4] Ms. Sakhizada always intended to sue the Defendants in her own independent action.
[5] The parties to the class proceeding do not oppose Ms. Sakhizada’s request to be granted an extension of time to opt out.
[6] In appropriate cases, the court has the jurisdiction to extend the time for opting-out.[^2] In 1250264 Ontario Inc. v. Pet Valu Canada Inc.,[^3] Justice Strathy, as he then was, noted, at paras. 58 and 59:
The right of a party to opt out is fundamental to the court's jurisdiction over unnamed class members. It is also fundamental to preserve the legal rights of those who wish to exercise those rights other than through the class action.[^4]
[7] The case at bar is an appropriate case to extend the opt-out period. Order to go as requested. I have signed the Order.
Perell, J.
Released: October 5, 2022.
COURT FILE NO.: CV-19-00631903-00CP
DATE: 20221005
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
G.C., J.C., and A.C. Plaintiffs
- and -
MARTIN JUGENBURG and DR. MARTIN JUGENBURG MEDICINE PROFESSIONAL CORPORATION Defendants
ENDORSEMENT
PERELL J.
Released: October 5, 2022
[^1]: G.C. v. Jugenburg, 2021 ONSC 3119 [^2]: 1250264 Ontario Inc v Pet Valu Canada Inc, 2011 ONSC 3871; Harrington v. Dow Corning Corp, 2001 BCSC 221. [^3]: 2012 ONSC 4317, rev'd on other grounds 2013 ONCA 279. [^4]: Cited with approval in Johnson v. Ontario, 2021 ONCA 650.