Canada: Fighting On Many Fronts: Court Allows Individual Action To Proceed Alongside Class Actions

In Crider v Nguyen, 2016 ONSC 4400, Justice Perell of the Ontario Superior Court recently dismissed a motion by Zimmer, the manufacturer of a hip implant device, seeking to stay the action of two individual plaintiffs who already appeared to be members of one or both of two overlapping and related class actions: McSherry v Zimmer in Ontario, and Jones v Zimmer in British Columbia.

In coming to his decision, Justice Perell had to navigate issues with respect to (i) whether the plaintiffs had opted in to the British Columbia class action, (ii) whether an Ontario court could make such a determination, (iii) whether the plaintiffs ought now be allowed to opt out of the Ontario class action after the expiry of a court-ordered opt out deadline, and (iv) whether and to what extent Zimmer and the other defendants might be prejudiced by allowing the plaintiffs' individual action to continue. We discuss the Court's approach to each of these issues below.

Ontario Courts Will Have To Decide Who Is In Or Out of B.C. Class Actions

The Jones class action was certified in British Columbia, and the McSherry class action was certified in Ontario. Under the Ontario Class Proceedings Act, those persons meeting the definition of a class member are presumptively in the class action unless they take steps to opt out, whereas under the British Columbia Class Proceedings Act, class members from outside the province must opt in to a class action within a prescribed time period. In this case, one of the plaintiffs submitted an opt in form to the B.C. law firm with carriage of the Jones class action, but she subsequently advised the firm that she did not wish to participate in the B.C. action as she would instead be commencing an individual action in Ontario. The B.C. law firm responded that they had closed her file, but, through clerical error, the plaintiff's opt in form was submitted to a database setting out the class members of the Jones action.

Justice Perell noted in his decision that while he could not decide a matter within the jurisdiction of the B.C. court, ultimately, as a conflict of laws problem, an Ontario court would be asked to enforce the B.C. class action judgment, and, thus, he would at this juncture have to consider whether the plaintiff was or was not a member of the Jones action. Proceeding on that basis, Justice Perell concluded that an Ontario court would not enforce a judgment made in the Jones action as against the plaintiff because it was only by clerical error that she had been added to the list of class members in the Jones action.

Lack Of Subjective Awareness Of The Right To Opt Out Is Not Enough To Be Let Out Of An Opt Out Class Action

As a result of Justice Perell concluding that Ontario courts would not enforce a judgment in the Jones action against the plaintiff, he then had to consider whether the plaintiff would now be allowed to opt out of the Ontario McSherry action and allowed to pursue her individual action. As we have written previously, when the McSherry action was first initiated, Justice Perell determined that it could proceed alongside the already-certified Jones action, and in 2014 he certified the McSherry action as a national opt out class action that would capture any non-B.C. class members who had not actively taken steps to opt in to the Jones action. The plaintiff in the present case now fell into that category, and was prima facie a class member in the McSherry action.

Justice Perell noted that while the plaintiff had not, in fact, received notice of her right to opt out of the Ontario action, class counsel in the McSherry action had complied with the court order for providing notice, and so the absence of subjectve awareness would not serve to exclude the plaintiff from the McSherry action.

Claiming Individually Against Defendants Outside The Class Action Is Not Enough To Be Let Out Of An Opt Out Class Action

The plaintiff advanced two other justifications for allowing her to opt out of the McSherry action following the expiry of the opt out deadline: first, that the nature of her claims and her damages is different than other class members and she should be allowed to pursue these claims, and, second, because there are defendants other than Zimmer in her individual action, that she should be allowed to pursue all of her claims. Justice Perell disagreed with these two justifications, noting that while the judgment in McSherry would preclude the plaintiff from pursuing Zimmer in an individual action, it would not preclude her from pursuing the other defendants, and her belief that she will receive a better outcome by way of her individual action is not reason to permit her to opt out of the McSherry action.

Prejudice To The Class Defendant Is A Major Factor

However, Justice Perell found that there was another justification for allowing the plaintiff to opt out of the McSherry action that reached the same result: class counsel was the same in both the Jones action and the McSherry action, and the plaintiff had already informed them that she did not want to opt in to the Jones action as she wished to proceed by way of an individual action. In Justice Perell's view, this amounted to notice to class counsel that the plaintiff also wished to opt out of the McSherry action, even if such notice was not presented in a formalized manner by submitting a McSherry opt out form.

Ultimately, Justice Perell saw no great prejudice to Zimmer in allowing the plaintiff to opt out given that Zimmer was aware that there were going to be a few individual actions to defend, and but for the late timing of the formality of the plaintiff's opt out, her decision to opt out should come as no surprise to Zimmer.

Justice Perell's decision is in keeping with his previously stated preference for ensuring access to justice to plaintiffs to pursue their claims, so long as providing such access does not unduly prejudice defendants. Where, as here, a plaintiff is aware that they may participate in a class action, but the plaintiff has definitively eschewed the benefits of a class action to take on the considerable risks of individual litigation against a formidable defendant, Justice Perell has demonstrated the Court's willingness to protect a plaintiff's ability to pursue that decision, so long as it is not unfair to the defendant to allow the plainitff to do so.

Justice Perell's decision indicates that in the right circumstances, the Court will permit an individual to opt out of a national class action even when (i) the individual has failed to deliver a proper opt out notice, and (ii) the opt out deadline has passed.

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 Mondaq.com.

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

Authors
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
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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