On October 24, 2022, the Ontario Court of Appeal released Johnson v Ontario, 2022 ONCA 725, confirming the test governing judicial discretion to extend the time for a class member to opt out of a class action. A class member that seeks to opt out late must now show two things: (1) “excusable neglect” in failing to comply with the opt-out deadline, and (2) that the extension will not prejudice the class, the defendant, or the administration of justice.
Johnson concerned a consolidated class action brought on behalf of all persons incarcerated at the Elgin-Middlesex Detention Centre during a defined period. The action alleges negligence and Charter violations in the operation and management of the centre. The appellant, Donald Parker, failed to provide class counsel with an opt-out form by the prescribed deadline. He then commenced an individual action that overlapped with the consolidated class action.
Mr. Parker moved for an extension of time to opt out, arguing that he was not made aware of the consolidated class action until after beginning his own proceeding. At first instance, the Ontario Superior Court of Justice denied the motion, and in September 2021 the Ontario Court of Appeal held that this decision involved a substantive right and was therefore a final order for the purposes of Mr. Parker’s appeal rights.[1]
In its decision on the merits, the Court of Appeal confirmed that the power to extend a class member’s time to opt out flows from section 12 of the Class Proceedings Act, 1992, which enables the court to make “any order it considers appropriate respecting the conduct of a proceeding” under that legislation.
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