In Johnson v. Ontario, 2021 ONCA 650, the Court of Appeal determined that a decision refusing to extend the deadline for opting out of a class action affects a substantive right, and is therefore a final order, as it disposed of the plaintiff's ability to continue his civil action.
An inmate, Mr. Parker, experienced pain and swelling in his left arm following a drug incident at a detention centre. Detention centre staff did nothing after being alerted to the inmate's injuries, and the injury worsened. The inmate was not taken to the hospital until three days later, where it was discovered that his arm had become necrotic. The inmate endured several surgeries. The inmate now has a permanent disabling injury stemming from the incident.
Mr. Parker sued Ontario in negligence and alleged several Charter rights breaches, claiming over $6 million.
Mr. Parker was unaware of other class action suits on behalf of those at his detention centre, in which he would be included at the time he brought his action. Mr. Parker only learned of the class proceeding when he received Ontario's notice of intent to defend in June 2020, after the June 2018 class action opt-out deadline. Ontario asked Mr. Parker to discontinue the action or to limit the claim for the time period not captured by the class action.
Mr. Parker brought a motion seeking an extension of the time within which he could opt out of the class action, which was refused. By refusing to extend the time, the motion judge effectively terminated Mr. Parker's civil action.
The issue in this case was whether a motion judge's decision to refuse to extend the time within which a class member can opt out of a class proceeding is final or interlocutory.
Interlocutory orders are appealable to the Divisional Court, while final orders are appealable to the Court of Appeal. As part of the analysis of whether an order is interlocutory or final, the judge considered the substantive and procedural nature of the order.
The judge found that opt-out rights have a substantive nature to them. Citing the decision of Sharpe J.A. in Currie v. McDonald's Restaurants of Canada Ltd. (2005), 2005 CanLII 3360 (ON CA), 74 O.R. (3d) 321 (C.A.), at para. 28, the judge stated regarding class action plaintiffs,
"...Taking appropriate steps to opt out and remove themselves from the action allows unnamed class action plaintiffs to preserve legal rights that would otherwise be determined or compromised in the class proceeding..."
Further, the judge stated that our society values a person's ability to initiate and participate in litigation as well as the right to appoint counsel of one's choice, the right to participate meaningfully in the development of litigation strategy, to participate in settlement negotiations, and to settle the action. The legislative right to opt out of a class proceeding recognizes these significant rights.
The judge ultimately decided that the motion judge's decision was final because denying an extension to opt-out removed Mr. Parker's substantive rights. In deciding so, the judge stated, at para 26,
"Although we often distinguish between substantive and procedural rights in litigation terms, they are in fact symbiotic. It is not always possible or wise to distinguish one from the other. In the overall context, Mr. Parker lost substantive rights of significant importance when his motion for an extension of time within which to opt out of the class action was denied. In my view, it is reasonable to treat the order under appeal as a final order for the purposes of determining appeal rights."
The court accordingly dismissed Ontario's motion to quash the appeal.
Distinguishing between interlocutory and final orders in order to ascertain appeal rights continues to be a difficult exercise. However, this decision suggests that the focus of the analysis should instead be on whether there is a loss of a substantive right, such as losing the ability to sue, which indicates that the order is final.
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