Ontario Civil

Civil Procedure

Reasonable probability franchisees opted out as result of misleading information

Action was certified as class action. CPVF used telephone campaign and established website to encourage class members to opt out of action. Plaintiff brought motion for order setting aside opt-out notices received from class members on grounds process was compromised. Any opt-out on or after specified date was declared invalid. Any opt-out prior to specified date was presumptively valid subject to right to any franchisee who opted out prior to specified date to move to set aside opt-out. Class members would be given further opportunity to opt out. Opt-out process was subverted by actions of CPVF. CPVF interfered with class members’ fundamental right of access to justice. Canadian Franchise Council wearing hat of CPVF mounted campaign designed to kill class action by putting pressure on hold-outs by prominently listing growing list of names of opt-outs. Campaign painted exaggerated and misleading picture of dire consequences of class action. Campaign painted misleading picture of legal rights of opt-outs. Campaign demonized class counsel. There was reasonable probability that many franchisees decided to opt out as result of misleading information and unfair pressure amounting to intimidation.

1250264 Ontario Inc. v. Pet Valu Canada Inc. (July 27, 2012, Ont. S.C.J., Strathy J., File No. CV-09-392962-00CP) 218 A.C.W.S. (3d) 762 (18 pp.).

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