An Unassailable Right to Speak: Class Communications, Opt-out Rights, and the Class Proceedings Act

AuthorBevan Brooksbank
Bevan Brooksbank
Abstract: The recent Ontario Court of Appeal decision in
1250264 Ontario Inc v Pet Valu Canada Inc gave appellate
guidance to the quest ion of judicial regulation of class com-
munications, a recurr ing issue since the infancy of the Class
Proceedings Act, 1992 (th e C PA). Chief Justice Winkler main-
tained that i ntervention is warranted only when communica-
tions infringe the right of class members to make an opt-out
decision on an informed and voluntar y basis, free from undue
inf‌luence. This standard applies regardless of whether the
communications origi nate from the parties, or in fact from
the class member s themselves. The focus of the inquiry is
the effect of the communications, in light of the surround-
ing circumst ances, on the integrity of the proceeding. Abs ent
such an effect, class members have an “unassailable right” to
speak out in opposition to the proceeding.
With respect to content, communications of non-party
class members are qualitatively distinct from those emulat-
ing from partie s. Such “intra-class” discourse need not be f air
and balanced.
Pet Val u also speaks to the evidentiary onus that must
be met for relief, as well as the responsibilities of counsel in
responding to class communications. The decision pose s the
general question of how the CPA deals wit h conf‌lict within a
class, part icularly where class members share a f‌inancial in-
terest with the defend ant. How should the dispar ate business
ccar 9-1.indb 75 12/12/2013 12:37:24 PM
interests of class members interact with t he policy objectives
of the CPA?
This paper submits that the Court of Appeal achieved the
correct balance, and w ill place Pe t Val u in the context of the
jurisprudence that has developed concerning class communi-
ccar 9-1.indb 76 12/12/2013 12:37:24 PM

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