In Nardi v. Sorin Deutschland GmbH, 2026 ONSC 3891 Justice Glustein dismissed a motion by a class member for an order permitting him to opt-out of an Ontario class action after both the expiry of the opt-out deadline and the negotiation of a settlement of the action in principle. Applying the test articulated in Johnson v. Ontario, 2022 ONCA 725 (Johnson), the court concluded that in the circumstances of the case, the importance of the moving party’s right to control his own litigation must cede to the importance of finality through the enforcement of court-ordered deadlines.1
The Facts:
The focus of the action is the defendants’ allegedly negligent design, manufacture and failure to warn about risks associated with the use of a certain medical device during cardiac surgery. Class members, consisting of persons in Canada who underwent cardiac surgery during which the device was used during a particular period, allege that they had were exposed to, and in some cases developed infections from a particular bacterium associated with the use of the device. The certification order made on May 21, 2021 specified an opt-out deadline of September 27, 2021.
The moving party, Frédéric Roy Richard (“FRR”) had undergone cardiac surgery in March 2016 during which the device in issue was used. On October 20, 2016, FRR was notified that the device had been contaminated by the particular bacterium but that there was a low risk of infection.2 Several years later, his health deteriorated,3 and in August 2023 he was advised that he had a systemic and chronic infection with the bacterium that would require extensive treatment.4 FRR did not learn of the class action until June 2025 during consultation with a law firm about pursuing redress for his injury. In November 2025 he issued a claim in Quebec seeking approximately $1.85 million in damages and an order permitting him to opt-out of the class action.5
On June 27, 2025, before the defendants had been notified of FRR’s intention to bring an individual claim, the parties to the class action reached a settlement in principle involving a lump-sum payment in exchange for a class-wide release.6
The Motion:
FRR sought an order under s. 12 of the Ontario Class Proceedings Act, 1992 extending the time to opt out of the class action. He submitted that:
- The Johnson test should not apply. It was effectively impossible for him to have taken any steps in the class action before the opt-out deadline expired because his symptoms did not appear until years after that date;
- In the alternative, he had satisfied the Johnson “excusable neglect/no prejudice” test. He had no notice of the class proceeding and the defendants would suffer no prejudice if his request for a late opt-out was granted.7
Both of these arguments failed.
Reasons For the Dismissal of the Motion:
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The Johnson Test Applied Even to Class Members Who Had Not Yet Suffered Damages
In Johnson, the Ontario Court of Appeal articulated the following test for determining whether a request to extend the opt-out deadline should be extended:
“…the importance of the opt-out right and of the deadline for opting out are both properly respected when a court grants extensions only where (i) the delay in opting out is due to excusable neglect – in good faith and with a reasonable basis – and (ii) the court has considered whether any prejudice will accrue to participating class members, the defendant, or the integrity of the process, from permitting the late opt-out. This approach ensures that in a justifiable case a class member who does not want to be part of the class proceeding may have their litigation autonomy restored. But it also respects the need to ensure the court’s processes – its orders – are taken seriously, and that those who have planned and taken their courses of action on the strength of them do not suffer any prejudice”.8
Justice Glustein rejected FRR’s argument that the Johnson test should not apply to him because his symptoms did not develop until after the expiry of the opt-out deadline. It was not “impossible” for him to have taken steps in the class action. FRR had two options: (1) remain in the class and seek damages for general stress and undergoing medical procedures to address the risk from exposure to the bacterium, or (2) opt out and later bring an individual action if significant physical damage occurred, subject to any limitations defences.9
To allow class members to defer their decision until after significant injuries had emerged would create an “uncertain and moving target” to the potential prejudice of those with carriage of the class proceeding and defendants deciding how to respond to it.10 This would be inconsistent with the certainty and finality that opt-out deadlines are intended to provide.11 Accordingly, the Johnson test applied to class members who had not yet suffered significant (or any) damages.12
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Application of the Johnson Test
i) Excusable Neglect:
Justice Glustein concluded that FRR had established “excusable neglect” and satisfied the first part of the Johnson test. FRR was unaware of the existence of the class action until June 17, 2025. Once he learned about the class action, FRR acted reasonably and in good faith when he instructed counsel to review evidence relating to his file before deciding whether to opt out and pursue an individual claim.13
ii) Prejudice to the Defendants Even Though the Settlement Had Not Yet Been Approved:
However, Justice Glustein rejected FRR’s submission that the defendants could not demonstrate prejudice because the settlement had not yet been finalized or approved by the Court. The defendants had negotiated a settlement in principle providing for a lump-sum payment in exchange for a class-wide release on the assumption that all persons who had not opted out by the deadline remained class members and would be bound by the release. The defendants “relied on the finality of the opt-outs”.14
If the late opt-out was permitted, the defendants would either be required to (i) pay the lump sum for a lesser release than what had been negotiated, (ii) walk away from the settlement and carry on with the defence of the claim, or (iii) attempt to renegotiate the agreement after having set out their settlement position during the course of the negotiations. All of these options would cause prejudice to the defendants.15 Even if the settlement was still subject to the approval of the court and provincial health authorities, the “settlement egg [could not] be unscrambled” by the removal of FRR from the settlement.16
Finally, to grant the motion would be contrary to the integrity of the class action process, which requires certainty of opt-out deadlines to avoid potential prejudice to those with carriage of class proceedings who must make decisions about how to conduct it, and to defendants in deciding how to respond to it.17
Significance:
This decision confirms that a settlement in principle may itself constitute sufficient prejudice to defeat a late opt-out motion, even where no final settlement agreement has been executed and no settlement approval order has been granted. The decision illustrates the significant weight Ontario courts place on the finality of opt-out deadlines once parties have negotiated a settlement in reliance on the composition of the class.
Footnotes
1 Nardi v. Sorin Group Deutschland GmbH, 2026 ONSC 3891, at Para. 11
2 Ibid, at Para 14
3 Ibid., at Para 24
4 Ibid., at Para 27
5 Ibid., at Para 52
6 Ibid., at Para 47
7 Ibid., at Para 87
8 Ibid., at Para 69, quoting Para. 52 of Johnson.
9 Ibid., at Para 92
10 Ibid., at Para 96, quoting Para. 51 of Johnson.
11 Ibid., at Para 96
12 Ibid., at Para. 95; 98
13 Ibid., at Para. 101 to 104
14 Ibid., at Para. 109
15 Ibid., at Para 111
16 Ibid., at Para 110
17 Ibid., at Para. 115, quoting Johnson at para. 51
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