Ontario Civil

Civil Procedure

No one prepared to assume role as representative plaintiff

Plaintiff sought to discontinue action. This was proposed class proceeding on behalf of group of retirees. Claim related to early retirement program. Plaintiff alleged it was understood and agreed to by retirees that upon death of retiree, retiree’s spouse would continue to receive 100% health coverage benefits until time of death of spouse. Defendant took position that benefits terminated upon earlier of spouse’s remarriage or end of 12 months following death of retiree. Proposed class consisted of small group of employees who took early retirement. Plaintiff’s spouse predeceased him and he was no longer member of proposed class. Plaintiff was not successful in finding another member of class to replace him. Application granted. Leave of court was required for order granting discontinuance. Class was small. There was nothing to suggest that any claims were withheld in reliance on proceeding. Economics of litigation were marginal and it could not proceed without representative plaintiff. No one was prepared to assume role as representative plaintiff. In circumstances it was proper to grant leave to discontinue without prior notice to class, but class was to be given notice of discontinuance.

Westland v. Ontario Hospital Assn. (Jul. 8, 2013, Ont. S.C.J., Lax J., File No. Toronto 06-CV-312902CP) 231 A.C.W.S. (3d) 60.

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