Opt-out information, which was largely simple list, could not be properly characterized as evidence

Ontario civil | Civil Practice and Procedure | Discovery | Introductory

Plaintiffs brought class actions alleging that defendant governments overcharged class member charities for bingo licences. Case management judge found that defendants used undue influence to improperly obtain opt-outs, and he required that there be fresh opt-out period so any potential claimants who had already opted-out would have opportunity to reconsider positions free from further undue influence by defendants. Protective order was issued that prohibited disclosure of identities of potential class members who had opted-out of proceedings. Fresh opt out period ended. Case management judge declined plaintiffs' request to continue protective order. Plaintiffs successfully appealed. Defendants appealed. Appeal allowed. Divisional Court incorrectly concluded that because members of class were not parties to litigation, they were entitled to maintain their anonymity at least up to stage where they have to individually prove any claim that they may have. Divisional Court incorrectly concluded that opt-out information was equivalent to information properly produced pursuant to discovery process and thus fell within scope of deemed undertaking rule. Opt-out information, which was largely simple list, was not and cannot be properly characterized as being evidence covered by Rule 30.1.01(1) of Rules of Civil Procedure. It was process that created opt-out information and consequently, opt-out information was not private information of any party but rather it was information all parties were entitled to have. Overarching principle applicable to all court proceedings was that public was entitled to know what proceedings were commenced in our courts, along with particulars of those proceedings, and whose rights were being submitted for adjudication.

Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City) (2019), 2019 CarswellOnt 6472, 2019 ONCA 344, P. Lauwers J.A., G. Pardu J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 5529, 2018 ONSC 2350, R.J. Harper J., F. Myers J., and D. Newton J. (Ont. Div. Ct.).

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