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

• Author: Bevan Brooksbank
• Pages: 75-100

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“AN UNASSAILABLE

RIGHT TO SPEAK”: CLASS

COMMUNICATIONS,

OPTOUT RIGHTS, AND

THE

CLASS PROCEEDINGS ACT

Bevan Brooksbank

Abstract: The recent Ontario Court of Appeal decision in

1250264 Ontario Inc v Pet Valu Canada Inc gave appellate

guidance to the question of judicial regulation of class com-

munications, a recurring issue since the infancy of the Class

Proceedings Act, 1992 (the CPA). 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 originate from the parties, or in fact from

the class members 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 Valu 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 poses the

general question of how the CPA deals with conf‌lict within a

class, particularly where class members share a f‌inancial in-

terest with the defend ant. How should the dispar ate business

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interests of class members interact with the policy objectives

of the CPA?

This paper submits that the Court of Appeal achieved the

correct balance, and will place Pet Valu in the context of the

jurisprudence that has developed concerning class communi-

cations.

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