In Johnson v Ontario, 2022 ONCA 725, the Court of Appeal for Ontario confirmed the test governing the court’s discretion to extend the time to opt out of a class action.
In order to be granted an extension to opt out of a class proceeding, a class member must demonstrate (1) “excusable neglect”; and (2) that the extension will not prejudice the class, the defendant, or the administration of justice.
Johnson involved a consolidated class action brought on behalf of persons incarcerated at the Elgin-Middlesex Detention Centre (“EMDC”) during a defined class period. The action sought declaratory relief and damages for negligence and violations of the Canadian Charter of Rights and Freedoms arising from the conditions, operations, and management of EMDC.
The certification order provided that class members could opt out by providing written notice to class counsel. The court approved the notice plan, which contemplated two forms of notice and prescribed an opt out deadline. A short form of notice was published in local newspapers, and a long form of notice was posted on class counsel’s website and sent to the last known address of each class member.
The appellant was incarcerated in federal custody and did not receive the notice sent to his last known address, where his father resided. The appellant failed to provide class counsel with an opt out form by the prescribed deadline.
The appellant became aware of the consolidated class action after he commenced his own action and sought an extension of time to opt out. At first instance, the Ontario Superior Court of Justice denied the motion. The Court of Appeal allowed the appeal and found that the motion judge had failed to articulate or apply the correct test. The motion judge’s approach to the discretion to extend was too narrow. The court found that a proper application of the test and consideration of the relevant factors in this case indicated that the extension to opt out should have been granted.
The Court of Appeal affirmed the excusable neglect / no prejudice test adopted by the Superior Court of Justice in Young v. London Life Insurance Co. as the test to be applied on a motion to extend the time to opt out of class proceedings.
In doing so, the court recognized the importance of balancing class members’ right to opt out with the importance properly attributed to court-ordered deadlines, which promote certainty in class proceedings.
Extensions should only be granted where:
- The delay in opting out is due to excusable neglect, in good faith and with a reasonable basis; and
- The court has considered whether any prejudice will result to participating class members, the defendant, or the integrity of the process.
In applying the test, the Court of Appeal found that the appellant’s neglect was “excusable.” The appellant did not receive the notices and was incarcerated when the short-form notice was published and when the long-form notice was sent to his last known address at which he was not physically present. There was no evidence to suggest that the appellant should have implemented a system to monitor mail while he was in custody. The court found the appellant’s commencement of an independent action without addressing the consequences of a class action to be consistent with his lack of awareness of the class proceeding, or of any opt out deadline or requirement. The court found that evidence about what the appellant would have done had he received the notices should not have been considered by the motion judge. Rather, the appropriate question was whether the fact that the appellant did not opt out was the result of excusable neglect.
The Court of Appeal noted that the motion judge did not address or make any findings of prejudice to the class, to Ontario, or to the integrity of the process or the administration of justice. The court considered the fact class counsel did not oppose the appeal to be a strong indicator that an extension of time would not result in prejudice to the class. The respondent did not identify any prejudice which would result from an extension being granted. The appellant’s behaviour was neither strategic nor cavalier toward the court-ordered opt out deadline, and the court found that granting an extension would not cause prejudice to the integrity of the process or the administration of justice.
The Johnson decision provides significant clarity to the issue of when discretion to extend the time to opt out should be exercised. The court noted that, prior to this decision, there had been no appellate authority in Ontario that had expressly considered the excusable neglect / no prejudice test or definitively articulated any other test.
  O.J. No. 5971 (S.C.).