In both cases, the parties desired to canvass class members in
order to assess the size of the class and the nature of the damages
they allegedly suffered, with an eye towards reaching a settlement
that would cover only those class members who had stepped forward.
However, by insisting on an outright bar on claims of those who
failed to participate in a claims registration process, and by
doing so before any settlement agreement had actually been reached,
the Durling parties went a step too far and drew the ire
of the court, whereas the Banerjee settlement was
Durling v Sunrise Propane Energy
In Durling, the parties had reached an agreement on a
consent certification order. As part of this agreement, all class
members were required to register their claims in an online
registration system within six months. Those class members who
failed to do so were forever barred from participating in any
future settlement and commencing any action against the defendants,
subject to further order of the court. Those who registered late
could avail themselves of a late registration procedure that could
be contested by the defendants.
Justice Horkins found that the practical effect of this claims
bar was to convert Ontario's Class Proceedings Act
from an "opt-out" to an "opt-in" regime that
was not supported by Ontario's class proceedings law. Noting
that 73% of class members had not yet registered their claims,
Justice Horkins was concerned that the proposed settlement would be
unfair to those class members who failed to register by the
deadline. She was also concerned that defendants, who would be able
to view the information class members submitted during the
registration process, would effectively gain early discovery of the
class members before they would be entitled to do so under
Ontario's Rules of Civil Procedure.
Banerjee v Shire Biochem Inc.
Justice Horkins' strong rejection of the certification
settlement agreement in Durling can be contrasted with the
decision to approve a settlement agreement in Banerjee. In
Banerjee, as in Durling, the parties reached a
consent certification agreement that required detailed information
from class members. However, in Banerjee the process for
obtaining information from class members was characterized as a
"pilot project" or "negotiation process"
leading up to settlement and it included no explicit claims bar.
The certification agreement and pilot project were approved by Justice Strathy.
After collecting detailed information from class members through
the pilot project, the parties reached a settlement agreement to
compensate the 58 class members who had been identified. Unlike
Durling, Justice Strathy expressed his satisfaction with
the process undertaken by counsel for the plaintiffs and
defendants, which resulted in a "careful and thorough
assessment" of each class member's claim.
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