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

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 communications, a recurring issue since the infancy of the Class Proceedings Act, 1992 (the CPA). Chief Justice Winkler maintained that intervention is warranted only when communications infringe the right of class members to make an opt-out decision on an informed and voluntary 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 surrounding circumstances, on the integrity of the proceeding. Absent 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 emulating from parties. Such “intra-class” discourse need not be fair 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 interest with the defendant. How should the disparate business 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 communications.