In Johnson v Ontario, the Ontario Court of Appeal considered the novel question: Is a motion judge’s decision to refuse to extend the time within which a class member can opt-out of a class proceeding final, or interlocutory? In Ontario, interlocutory orders are generally appealed, with leave, to the Divisional Court, and final orders are appealed to the Court of Appeal. To determine the issue of the appropriate appeal rights, the court considered whether the right to opt-out of a class proceeding is a substantive, or a procedural right.
Donald Parker was an inmate in the Elgin Middlesex Detention Centre in December 2016, where he alleged to have suffered a permanent disabling injury. Mr. Parker claimed to have discovered his cause of action in November 2018, after receiving a copy of his medical chart from the treating hospital. He commenced an action against the Province of Ontario (“Ontario”) and a number of other entities claiming damages for negligence, and under s. 24(1) of the Charter for breaches of ss. 7 and 12.
At the time Mr. Parker commenced his action, he was not aware of the existence of two class actions that had been certified and consolidated on behalf of persons incarcerated at the Elgin Middlesex Detention Centre between January 1, 2017 and May 18, 2017 (the “Class Action”). The Class Action was certified on May 18, 2017 and the opt-out deadline was June 20, 2018.
Pursuant to the Class Proceedings Act, 1992 (the “CPA”), the legislation governing class proceedings in Ontario, Notice of Certification (“Notice”) would have been disseminated to Mr. Parker, a class member in the Class Action. The Notice provides class members with information about the Class Action, and provides the detailed procedure for those class members who wish to opt-out of the proceeding, and not be bound by the Class Action. Class members who wish to opt-out must do so by a prescribed deadline set out in the Notice. While there are various reasons why a class member may choose to opt-out of a class proceeding, one of the common reasons is so they may pursue their own individual action where their damages may be significantly larger than what would be recovered as a member of a class.
In this case, Mr. Parker’s evidence was that he did not receive the Notice which was sent to the apartment he shared with his father in St. Thomas, Ontario. At the time the Notice was disseminated, Mr. Parker was in federal prison at Joyceville Institution. Mr. Parker deposed that he learned of the class proceeding only when he received a letter from counsel for Ontario dated June 5, 2020, which accompanied Ontario’s Notice of Intent to Defend Mr. Parker’s action. Ontario asked Mr. Parker’s counsel to discontinue the action or to limit the claim to post May 18, 2017 conduct in view of the Class Action. Mr. Parker responded by seeking an extension of the time within which he could opt-out of the Class Action.
The motions judge denied Mr. Parker’s motion, effectively terminating Mr. Parker’s individual action. Mr. Parker appealed the order to the Ontario Court of Appeal. Ontario responded by moving to quash the appeal, arguing that the motion judge’s order was interlocutory and the Court of Appeal lacked jurisdiction to review it. Lauwers J.A. dismissed the motion to quash.
The Court of Appeal’s Decision
Ontario took the position that the CPA is “entirely a procedural statute” and thus any rights under it, including the right to opt-out, should be seen as procedural, and not substantive. Justice Lauwers disagreed, noting “one can speak of the right to opt-out as itself a substantive right” Justice Lauwers concluded that denying the right to opt-opt, a right of sufficient importance, was a decision affecting substantive legal rights, noting, “Our society places a high premium on a person’s ability to initiate and participate in litigation as an incident of personal autonomy. Along with it goes the right to appoint counsel of one’s choice, the right to participate meaningfully in the development of litigation strategy, to participate in settlement negotiations, and to settle the action. The legislative right to opt out of a class proceeding recognizes these significant rights.”
Justice Lauwers then considered the jurisprudence distinguishing interlocutory and final orders, summarizing that “to be final an order must deal with the substantive merits as opposed to mere procedural rights, no matter how important the procedural rights may be. The test focuses on whether the order under appeal finally disposes of the rights of the parties, in the sense of substantive rights to relief (in the case of a plaintiff) or a substantive defence (in the case of a defendant).” This is contrast to an interlocutory order, “which does not determine the real matter in dispute between the parties—the very subject matter of the litigation, but only some matter collateral.”
In concluding the removal of Mr. Parker’s substantive rights rendered the motion’s judge’s decision final, Lauwers J.A. noted:
Although we often distinguish between substantive and procedural rights in litigation terms, they are in fact symbiotic. It is not always possible or wise to distinguish one from the other. In the overall context, Mr. Parker lost substantive rights of significant importance when his motion for an extension of time within which to opt out of the class action was denied. In my view, it is reasonable to treat the order under appeal as a final order for the purposes of determining appeal rights.”
This decision provides important clarity on the question of whether the right to opt-out of a class proceeding invokes a procedural or a substantive right, confirming that opt-out rights are indeed substantive rights and that the loss of substantive rights should be treated as a final order for the purposes of determining appeal rights. In recognizing the importance of the right of a class member to choose whether or not to opt-out of a class proceeding, Justice Lauwers noted:
The purposes and advantages of class proceedings are realized for litigants with relatively modest claims who are prepared both to be patient during the long and involved class action process and also to sacrifice a good deal of their potential recovery to finance the legal costs. For an individual with a major claim like Mr. Parker, a class action is self-evidently not the preferable vehicle. Apart from his inability to control the litigation, he is unlikely to be able to achieve anything like the measure of damages he is seeking for the personal injury he suffered.
 Johnson v Ontario, 2021 ONCA 650.
 Ibid at para 2.
 Ibid at para 11.
 Ibid at para 4.
 Ibid at para 5.
 Ibid at para 5.
 Ibid at para 7.
 Ibid at para 8.
 Ibid at para 9.
 Ibid at para 9.
 Ibid at para 10.
 Ibid at paras 1-2.
 Ibid at para 14.
 Ibid at para 15.
 Ibid at para 16.
 Ibid at para 21 citing to Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103, at para. 13
 Ibid at para 20 citing to Hendrickson v. Kallio,  4 D.L.R. 580 (Ont. C.A.) at pp. 583-84.
 Ibid at para 26.
 Ibid at para 25.