At first instance, the motion judge held that the campaign to
convince franchisees to opt-out of the class action organized by a
group of class members known as the Concerned Pet Valu Franchisees
("CPVF") had corrupted the opt-out process and could not
be cured by sending out a new notice or re-doing the opt-out
process. As a result, the opt-outs of those class members submitted
on or after the CPVF's campaign began were declared invalid and
it was ordered that these class members would have a further chance
to opt-out after the final disposition of the action on its merits.
For a fuller summary of the below proceedings please read our blog
Orders Permitting Class Members to Opt-Out after Final Disposition:
A Final or Interlocutory Remedy?
The purpose of the opt-out process is to provide class members
with the opportunity to make an informed and voluntary decision
whether they wish to remain in the class action and involves
important issues of access to justice. It is within the
jurisdiction of the case management judge of a class action to make
broad remedial orders to protect the integrity of the opt-out
In Pet Valu, the representative plaintiff, despite
being aware of the CPVF campaign during the opt-out period, did not
bring his motion to set aside the opt-outs until two months after
the end of the opt-out period. A supporting affidavit was not filed
for a further three months, and an amended notice was filed after a
further four months had passed. Ultimately, the motion was not
heard until approximately 10 months after the end of the opt-out
Importantly, the motion judge found that there was no evidence
that the CPVF campaign was controlled by the defendants or that the
defendant had exerted any form of pressure on class members to
opt-out. There was therefore no evidentiary basis for the motion
judge to find that the CPVF campaign had crossed the line into
impropriety. Further, the Court of Appeal held that the motion
judge erred in imposing obligations on class members to communicate
in an objective manner.
In overturning the ruling, the Court of Appeal stated that a
representative plaintiff should promptly seek intervention of the
supervising judge once they become aware of tactics that may demand
judicial scrutiny during the opt-out period. The opt-out process is
one which must be protected for the benefit of the class and not
for the benefit of the representative plaintiff or their counsel.
Correspondingly, the defendants may not sit idly by without running
the risk that a court will invalidate opt-outs.
The Court of Appeal also stated that the opt-out process is not
one which is to be politicized and discussed how the opt-out
process is not analogous to the labour context. The Court of Appeal
held that the case management judge had evaluated the equities of
the opt-out process from an incorrect belief that the class action
was in peril. Whether there is an increased number of
opt-outs and a decreased number of class members is not a basis for
Class members have a right to make voluntary and informed
decisions free from undue influence whether to opt-out. Within the
opt-out process, class members are free to consider and debate the
exercise of their options from a business perspective.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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