Canada: Court Of Appeal Overturns Pet Valu Decision: Class Members Can Openly Debate Opting Out Without Invalidating Opt-Out Period

The Ontario Court of Appeal, in reversing a controversial decision that re-opened the opt-out period in a certified class action, has confirmed that class members have "an unassailable right to speak out in opposition to the class proceeding in an attempt to convince other class members to opt out" of the class action, as long as the individual decisions to opt out are not coerced and remain voluntary and informed.

The Lower Court Decision Invalidates the Opt-Outs

On January 14, 2011, Justice Strathy certified a class action against franchisor Pet Valu for a narrow set of claims relating to allegations that Pet Valu had failed to pass on to its franchisees the benefits of volume rebates granted by the franchisor's suppliers. The certification order approved notice to all class members and advised that they had from July 15, 2011 to September 15, 2011 to opt out of the class action.

The relationship between the parties to the class action was acrimonious, and both sides were concerned that potential class members could be exposed to unfair or misleading communications from their opponents throughout the opt-out process. The certification order therefore incorporated a Plan of Proceeding that required court approval of the parties' communications with class members during the opt-out period.

Near the end of the opt-out period, a group of Pet Valu franchisees – calling themselves the Concerned Pet Valu Franchisees (CPVF) – started a campaign to persuade franchisees to opt out of the class action. The CPVF's central tenet was that franchisees should give the franchisor's new management team a chance to deal with the volume rebates issue, and that a class action would be harmful to Pet Valu's business. A substantial number of class members opted out during and following the CPVF's campaign. Following the opt-out period, the representative plaintiff sought a court order invalidating these opt-outs, alleging that they were the result of the CPVF's campaign and that the CPVF had provided misleading information about the class action and had coerced franchisees to opt out. Justice Strathy granted the order and invalidated the opt-outs.

For more information about Justice Strathy's decision, see the Osler Update 1250264 Ontario Inc. v. Pet Valu Canada Inc.: In or Out? A Bold Re-Opening of the Opt-Out Period in a Franchise Class Action.

The Court of Appeal Overturns the Decision and Validates the Opt-Outs

On May 3, 2013, in 1250264 Ontario Inc. v. Pet Valu Canada Inc., the Ontario Court of Appeal overturned Justice Strathy's decision and held that the opt-out notices from former class members were not coerced and were valid.

Both the Court of Appeal and Justice Strathy stated that class members must be permitted to make informed and voluntary decisions about participation in class actions. Both agreed that it was appropriate to scrutinize the CPVF's conduct using the fully informed and voluntary test from the A&P decision.1 However, the Court of Appeal held that the evidence did not support a conclusion of coercion, noting the following:

  • There was no direct evidence that any class member had been coerced, felt misled or felt intimidated.
  • There was evidence from class members who opted out that they did not experience such pressure or coercion.
  • Class members had access to neutral information about the class action through the court-ordered notices and class counsel's website.
  • The evidence established that Pet Valu was not linked to the CPVF or its communications and that Pet Valu had not exerted any sort of pressure on class members.
  • Because Pet Valu was not implicated in the conduct, any vulnerability inherent in the franchise relationship should not have been considered.
  • The CPVF had voiced its opinion about the advisability of the class action from a business perspective, not from a legal perspective.
  • The CPVF was permitted to communicate persuasively (but not coercively), and there were no grounds to hold them to a standard of objective neutrality in their communications.

The Court of Appeal's decision makes it clear that class members can express their opinions about whether or not class members should opt out of the class action as long as there is no coercion.

In addition, the Court of Appeal commented that the representative plaintiff had delayed in bringing the motion and ought to have raised his concern about the CPVF's communications with the supervising judge during the opt-out period. Had the representative plaintiff done so, the supervising judge could have arranged for alternative measures to increase the representative plaintiff's participation in the debate.

Finally, the Court of Appeal stated that the number of opt-outs does not affect the viability of the class action except in extreme cases, noting that certification is not determined by a referendum of class members. A class action whose class size is reduced through opt-outs can still proceed.


This landmark decision highlights class members' rights to debate whether or not to opt out of a class action and provides further clarity on the line between persuasive debate and coercive communication.


1 176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd., 62 O.R. (3d) 535 (S.C.J.), affirmed 70 O.R. (3d) 182 (Div. Ct.) leave to appeal refused.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions