Debates Amongst Class Members Are A Permissible Form Of Communication

Communications with class members pre-certification by anyone aside from class counsel is an oft disputed and contentious topic. In the past year, Ontario courts have ruled on the limits of communications between defendants and class members as well as between insurers of class members and their insureds. Most recently, in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, the Ontario Court of Appeal ruled that communications between class members directed towards persuading class members to opt-out were permissible.

At first instance, the motion judge held that the campaign to convince franchisees to opt-out of the class action organized by a group of class members known as the Concerned Pet Valu Franchisees ("CPVF") had corrupted the opt-out process and could not be cured by sending out a new notice or re-doing the opt-out process. As a result, the opt-outs of those class members submitted on or after the CPVF's campaign began were declared invalid