Schrager, Cotnam, Sansfaçon

Appeal from a judgment of the Superior Court dismissing an application to cancel the notices to members and opt-out forms. Dismissed.

The appellants were authorized to institute a class action against private schools to obtain partial reimbursement of tuition fees paid for the 2019-2020 school year, during which the educational activities were suspended due to the COVID-19 pandemic. The trial judge approved the notice to members, which the parties drafted together, and ordered its distribution to class members through the communication channels normally used by the schools and parents. Some of the respondents sent the parents a letter – the content of letter was similar from one school to another – in which they raised arguments against the class action and asked parents to opt-out. Some respondents even sent the parents an opt-out form to complete and offered to file the form at the court office of the Superior Court. At the expiry of the period, more than 24,000 forms had been sent to the court office.

Legal interest of the class representatives

The appellants, whose application seeks a ruling that the opt-out procedure was undermined by the respondents’ actions, have the requisite standing to seize the Court. The issue raised is likely to not only undermine the rights and interests of the class members but also the integrity of the class action.

Did the judge err in failing to conclude that the disputed communications were inappropriate?

No. The opt-out period is a crucial step in the process since it seals the fate of the class members. First, as stated in paragraph 46 of Trottier c. Canadian Malartic Mine (C.A., 2018-06-27), 2018 QCCA 1075, SOQUIJ AZ-51506827, 2018EXP-1864,  it is vital [translation] “to preserve the integrity of the class action mechanism and to promote access to justice for those who do not have the means, to maintain the balance of power between the parties and to deter wrongful conduct ". Next, it is important to protect the parties’ freedom of expression and promote the free flow of information that allows class members to make an informed decision regarding their participation in the class action. Balancing these values protects the integrity of the process without unduly restricting the parties’ freedom of expression. The courts cannot sanction every action that may be considered disinformation, threats, or a form of coercion, or that otherwise undermines the integrity of the opt-out process.

In some circumstances, a defendant who takes advantage of the transmission of the notice to directly address potential members of a class action may undermine the opt-out process. In this case, the respondents’ conduct is at the limit of what is acceptable. However, it cannot be concluded that they engaged in a form of intimidation, threats, or disinformation, or made misrepresentations. It is more the concerted action, taken in the middle of the opt-out period, that is worrisome. However, it does not appear appropriate to intervene; the evidence does not support the conclusion that the respondents’ communications induced some parents to opt-out, even though the number of opt-outs seems high.

Did the judge err in rejecting the appellants’ argument based on the rules of mandate?

No. Article 580 of the Code of Civil Procedure (CQLR, c. C-25.01) cannot be interpreted as requiring every class member to personally go to the court office to inform it of their intention to opt out. The fact that an opt-out form, duly completed and signed, is then given to a member, to one of the respondents, to a bailiff, or mailed to the court office is not relevant.

Legislation interpreted: article 580 of the Code of Civil Procedure

Text of the decision: http://citoyens.soquij.qc.ca