Deemed Undertaking Rule Does Not Apply To Opt Out Information

In its recent decision in Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), the Ontario Court of Appeal has held that the deemed undertaking rule does not apply to opt-out information in a class proceeding.

During the opt out period of this class action, the defendants embarked upon a public campaign to encourage putative class members to opt out. After the class actions judge held that the defendants had unduly influenced the opt-out process, a reconsideration period was ordered to allow members to opt back in. Concerned that the identity of those who had already opted out could be used by the defendants to convince them to stay opted-out, the class actions judge granted a protection order barring defendants' counsel from divulging the number and identity of class members to their respective clients. After the protection order was lifted, the plaintiffs argued that the deemed undertaking rule prevent defendants' counsel from disclosing to their