



COURT OF APPEAL
    FOR ONTARIO

CITATION: Amyotrophic Lateral Sclerosis Society of Essex
    County v.

Windsor (City), 2019 ONCA 344

DATE: 20190501

DOCKET: C65871, C65870

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Amyotrophic Lateral
    Sclerosis Society of Essex County

Plaintiff (Respondent)

and

The Corporation of the
    City of Windsor

Defendant (Appellant)

AND BETWEEN

Belle River District
    Minor Hockey Association Inc. and Essex County Dancers Incorporated

Plaintiffs (Respondents)

and

The Corporation of the Town
    of Tecumseh

Defendant (Appellant)

Brendan van Niejenhuis and Fredrick Schumann, for the
    appellants

Brian Radnoff and Alex Sharpe, for the respondents

Heard: April 11, 2019

On appeal from the order of the Divisional Court (Harper,
    Myers and Newton JJ.), dated April 11, 2018, with reasons reported at 2018 ONSC
    2350, allowing an appeal from the order of Justice Terrence L.J. Patterson of
    the Superior Court of Justice, dated January 13, 2017, with reasons reported at
    2017 ONSC 310.

Nordheimer J.A.:

[1]

The defendants appeal, with leave, from the order of the Divisional
    Court allowing an appeal from the order of the class actions judge, Patterson
    J., dated January 13, 2017. The Divisional Court ordered that the deemed
    undertaking in r. 31.1.01(3) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, applies to the names of the opt-outs, and the number of
    opt-outs, disclosed by respondents counsel to appellants counsel in these class
    proceedings.

[2]

For the reasons that follow, I would allow the appeal and set aside the
    order of the Divisional Court.

Background

[3]

Over many years, charitable and religious groups paid fees to the City
    of Windsor and the Town of Tecumseh for licenses to hold fund-raising lottery
    events (e.g. bingo games). In 2008, two companion class actions (one against
    each municipality) were commenced for the return of those fees. The two class
    actions have been jointly case-managed by Patterson J.

[4]

On December 31, 2012, the class actions were certified. The
    certification orders were varied by this court on August 12, 2015:
Amyotrophic
    Lateral Sclerosis Society of Essex County v. Windsor (City)
, 2015 ONCA
    572, 337 O.A.C. 315. Following that decision, the opt-out period ran for 120
    days from January 15, 2016 to May 15, 2016. The court-approved Notices of
    Certification directed that class members could opt-out by sending an opt-out
    form to class counsel, by mail, fax, or email, or by completing the opt-out
    form online.

[5]

During the opt-out period, the appellants engaged in a public campaign in
    an effort to convince class members to opt-out of the class actions. The campaign
    emphasized the potential harm to municipal finances from the class actions, including
    that taxes would have to be increased and services cut to pay any damage award.
    The campaign also encouraged members of the public to urge the charities and
    religious organizations that they supported to opt-out.

[6]

The respondents brought a motion challenging the propriety of the appellants
    campaign. On January 29, 2016, the class actions judge, while acknowledging
    that the appellants had the right to communicate with class members, found that
    the campaign went over the line and created "undue influence:
Amyotrophic
    Lateral Sclerosis Society of Essex County v. Windsor (City),
2016 ONSC 676,
    58 M.P.L.R. (5th) 127, leave to appeal dismissed 2016 ONSC 1929, 58 M.P.L.R (5th)
    137 (Div. Ct.). Among other things, he ordered that there would be a
    reconsideration period for class members who opted-out. The reconsideration
    period ran from August 11, 2016 to October 10, 2016. Both sides sought to
    appeal this decision, but the Divisional Court denied leave to appeal.

[7]

During the reconsideration period, and on the consent of the parties, the
    class actions judge made what was described as a protection order preventing
    the appellants counsel from passing along, to their clients, the number or
    identity of the opting-out members. He made the order to prevent undue
    influence during the reconsideration period.

[8]

After the reconsideration period, the appellants moved to lift the protection
    order. The respondents sought a revised protection order. Alternatively, the
    respondents sought a declaration that the deemed and/or implied undertaking
    rules applied to the identities and number of opt-outs.

[9]

The class actions judge granted the appellants motion and lifted the protection
    order:
Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor
    (City),
2017 ONSC 310. He rejected the respondents submissions in support
    of a modified protection order. He did not make a declaration, either way,
    about the deemed and/or implied undertaking issue. In reaching his decision,
    the class actions judge relied on
Sierra Club of Canada v. Canada (Minister
    of Finance),
2002 SCC 41, [2002] 2 S.C.R. 522

and found that
    there was "insufficient evidence that there is a serious threat to the
    commercial interest of the [respondents] in this case. On the evidence, the
    risk is not real and substantial and well-grounded": at para. 29. He also
    concluded that the open court principle outweighs the potential class members
    request for confidentiality: at para. 34.
[1]

[10]

The
    respondents sought leave to appeal to the Divisional Court. The Divisional
    Court granted leave "on only the following issue: did the Case Management
    Judge err in law in failing to consider whether the deemed and/or implied
    undertaking rules apply to information regarding the identities of the
    opt-outs?.

The decision below

[11]

The
    Divisional Court pointed out that the class actions judge had failed to address
    the alternative submission of the respondents that the deemed undertaking rule
    applied to the information regarding the opt-outs.
[2]
It also found that the class actions judge had erred in treating the request
    for a protection order as if it was a motion for a sealing order. While the
    latter conclusion is arguable, given the very narrow issue upon which leave to
    appeal had been granted, it was an error for the Divisional Court to have
    embarked on a consideration of that issue.

[12]

The
    Divisional Court reviewed the genesis of the deemed undertaking rule and
    correctly noted that the rule only applies to the specific circumstances set
    out in r. 30.1.01(1). More specifically, the rule applies only to information
    obtained through the discovery process: at paras. 26-30.

[13]

The
    Divisional Court concluded that the information regarding the opt-outs was
    information that would be available through the discovery process and there was
    no proper basis to distinguish the opt-out information, disclosed earlier in
    the litigation process, from that class of discoverable information. Thus, the
    Divisional Court concluded that the deemed undertaking rule applied to the
    opt-out information: at paras. 37, 44-47.

Analysis

[14]

The
    issue before this court is, as it was before the Divisional Court, a very
    narrow one. It has only to do with whether the deemed undertaking rule applies
    to the opt-out information.

[15]

In
    my view, the Divisional Court made two errors in its analysis. First, it
    incorrectly concluded that, because members of a class are not parties to the
    litigation, they are entitled, in some fashion, to maintain their anonymity at
    least up to the stage where they have to individually prove any claim that they
    may have: see paras. 8-11. Second, the Divisional Court incorrectly concluded
    that the opt-out information was equivalent to information properly produced
    pursuant to the discovery process and thus fell within the scope of the deemed
    undertaking rule: see paras. 37, 44-47.

(i)

Class members as parties

[16]

On
    the first error, I accept that, in the very technical sense, members of a class
    in a certified class action are not parties to the action:
Dabbs v. Sun
    Life Assurance Co. of Canada
(1998), 41 O.R. (3d) 97 (C.A.), leave to
    appeal dismissed [1998] S.C.C.A. No 372. However, once the opt-out period has
    expired, and a putative class member has not opted-out of the proceeding, they become
    part of the class of plaintiffs who are advancing a claim against the
    defendant(s). They have submitted to having their rights in relation to the
    issues raised in the class action determined by the court. I note, on this
    point, that s. 27(3) of the
Class Proceedings Act, 1992,
S.O. 1992, c.
    6 (
CPA
) expressly provides that a judgment on common issues of a
    class binds every class member who has not opted out of the class proceeding.
    I also note the observation in Warren K. Winkler et al.,
The Law of Class
    Actions in Canada
(Toronto: Thomson Reuters Canada, 2014) where the
    authors say, at p. 194:

Although a putative class member has certain statutory rights,
    he or she is not a party to the litigation
until the
    opt-out period has terminated
. [Emphasis added.]

[17]

While
    class members may technically not be parties to the action, they are very much
    akin to parties. For example, they are, potentially, subject to discovery. The
CPA
permits a party to seek leave, following the examination of the representative
    party, to examine a class member for discovery:
CPA
, s. 15(2).

[18]

This
    understanding that class members have a status akin to parties is also consistent
    with the fact that the
CPA
requires, as a condition for certification,
    that there be a representative plaintiff (or defendant). Axiomatically, the
    fact that there is a representative plaintiff means that that individual is
    representing the other plaintiffs, i.e., the other members of the plaintiff
    class.

[19]

Contrary
    to the respondents submission, this understanding of class members as akin to
    parties is not inconsistent with the decision in
Haddad v. Kaitlin Group
    Ltd.,
2012 ONSC 4515, where Perell J. noted that class members are not parties
    to the litigation in the normal sense: at para. 18. I agree. Class members are
    not parties in the normal sense because they have no right to participate in
    the underlying litigation  except with the permission of the court under s. 14
    of the
CPA.


[20]

However,
    the fact that the
CPA
creates a distinction between class members
    and parties does not change the fact that they should be treated as akin to
    parties when issues affecting their rights arise in the proceeding. It also
    does not mean that the actual parties to the litigation  and the public  are
    not entitled to know the identities of those class members that have submitted
    their rights for adjudication in the class proceeding.

(ii)

The deemed undertaking rule

[21]

In
    terms of the application of the deemed undertaking rule, in my view the opt-out
    information  largely a simple list - is not, and cannot be, properly
    characterized as being evidence covered by r. 30.1.01(1). It would be helpful
    on this question to reproduce the actual wording of the deemed undertaking
    rule. Rule 30.1.01 reads, in part:

(1) This Rule applies to,

(a) evidence obtained under,

(i) Rule 30 (documentary
    discovery),

(ii) Rule 31
    (examination for discovery),

(iii) Rule 32
    (inspection of property),

(iv) Rule 33 (medical
    examination),

(v) Rule 35 (examination
    for discovery by written questions); and

(b) information obtained from evidence referred to
    in clause (a).

(2) This Rule does not apply to evidence or
    information obtained otherwise than under the rules referred to in subrule (1)

[22]

The
    opt-out list is, in essence, statutorily created information. The list is information
    that is created as a result of the terms of the order upon which the court
    certifies the class action. As s. 9 of the
CPA
mandates, any member of
    the class may opt-out, and the terms and conditions of the opt-out process must
    be set out in the certification order. It is that process that creates the
    opt-out information. Consequently, the opt-out information is not the private
    information of any party. And it is information that all parties are entitled
    to have.

[23]

As
    the parties here acknowledged, the certification order could have directed that
    the opt-out forms be sent to the appellants as easily as to the respondents. Indeed,
    opt-out forms might, in some cases, be directed to a third party: Eizenga et al.,
Class Actions Law and Practice,
loose-leaf, 2nd ed. (Toronto:
    LexisNexis, 2008), §5.75. Regardless, both sides of the action would be
    entitled to the information, as would the court itself. It is important, on
    this point, to reiterate that r. 31.01.1(2) expressly provides that the deemed
    undertaking rule does not apply to evidence or information obtained otherwise
    than under the rules referred to in subrule (1).

[24]

The
    core purpose of the deemed undertaking rule is to protect the use to which the
    compelled production of a partys private information can be put:
Goodman
    v. Rossi
(1995), 24 O.R. (3d) 359 (C.A.);
Juman v. Doucette
, 2008
    SCC 8, [2008] 1 SCR 157. The opt-out information is not captured by that
    purpose. Rather, the opt-out information is information that relates to the
    identities of the class members who have agreed to be bound by the
    determinations made in the context of the class proceedings.

[25]

Courts
    in Canada operate on the openness principle. A person who chooses to commence a
    court proceeding must do so publicly, subject only to exceptional circumstances
    where a pseudonym or initials may be used:
C.G. v. Ontario (Health
    Insurance Plan General Manager),
2014 ONSC 5392, 327 O.A.C. 53 (Div. Ct.),
    at para. 7. The overarching principle applicable to all court proceedings is
    that the public is entitled to know what proceedings are commenced in our courts,
    along with the particulars of those proceedings, and whose rights are being
    submitted for adjudication. Any member of the public is entitled to have access
    to the court file, and to review all of the material that is filed with the
    court. In the same way, a defendant is entitled to know who is using the court
    process to advance a claim against it.

[26]

The
    respondents, and the Divisional Court, rely on my endorsement in
Markle v.
    Toronto (City),
[2004] O.J. No. 3024(S.C.J.) in support of their position.
    With respect, both mischaracterize my decision along with the nature of the
    information that was involved. In
Markle
, the information sought by
    the representative plaintiff was the private information of the City of
    Toronto. It was a list of the names and addresses of individuals who had been
    employed by, but were now retired from, the City. If the action proceeded to
    discovery, it would have been appropriate for counsel for the representative
    plaintiff to ask the Citys representative for a list of the retired persons
    whose claims would be covered by the class action. This request would be
    consistent with the requirement that rested on the City as a party, by virtue
    of s. 5(3) of the
CPA
, to provide its best information on the number
    of members of the proposed class as part of the certification process. Because
Markle
was being certified as a class action on consent, in order to ensure that
    notice of the class action was given in the most effective manner to the
    members of the class, I ordered that the City produce the detailed information
    in advance of the discovery process.

[27]

In
    its reasons, the Divisional Court said, at para. 44, that [t]he submission by
    the government defendants that the deemed undertaking applies only where a
    party is compelled to disclose its own private information in discovery is
    inconsistent with my decision in
Markle
. To the contrary, that
    submission is entirely consistent with the decision, properly understood.

[28]

As
    the class actions judge pointed out in his reasons, at para. 8:

As a result of an application under the
Municipal Freedom
    of Information and Protection of Privacy Act
, R.S.O. 1990, c. M56
    (MFIPP) a list of all 850+ potential class members is publicly available on
    more than one web site.

All that the opt-out information does is permit someone
    to reduce the publicly known 850+ potential class members to the actual class
    members. Both the public and the appellants are entitled to know the identities
    of the class members who are advancing the claims unless a confidentiality
    order is made pursuant to s. 12 of the
CPA
.

[29]

Underlying
    this appeal is an evident concern that the appellants might misuse the opt-out
    information because of the earlier issues surrounding the opt-out process. The
    class action judge declined to continue the earlier protection order he had
    made arising out of those earlier issues, although in so doing he applied the
    stricter test for the granting of a sealing order dictated by
Sierra
,
    rather than determining whether, at that stage, a confidentiality order should
    be made pursuant to s. 12 of the
CPA
to preserve the integrity of the
    class proceedings.

[30]

In
    any event, to the degree that any such concern might arise, s. 12 of the
CPA
gives a class action judge all of the authority that he or she needs to address
    that issue. Indeed, the section could not be more broadly worded. Section 12
    reads:

The court, on the motion of a party or class member, may make
    any order it considers appropriate respecting the conduct of a class proceeding
    to ensure its fair and expeditious determination and, for the purpose, may impose
    such terms on the parties as it considers appropriate.

[31]

If
    such a concern does arise, s. 12 is the proper route to be used to address it. There
    is no doubt that this class actions judge was well aware of the authority he
    had under that section as he expressly referred to it in his reasons dealing
    with the issues that arose over the original opt-out period. To the degree that
    the respondents feel that the class actions judge did not turn his mind to using
    that authority to address their expressed concerns regarding the lifting of the
    protection order, there is nothing that prevents the respondents from returning
    before the class actions judge to seek a remedy. That is the proper approach to
    take. The plain wording of r. 31.01.1 should not be distorted in order to
    effect such a remedy.

Conclusion

[32]

The
    appeal is allowed and the order of the Divisional Court is set aside. The
    appellants are entitled to their costs of the appeal fixed in the agreed amounts
    of $5,000 for the motion for leave to appeal, and $10,000 for the appeal, both
    inclusive of disbursements and HST.

Released: GP May 1, 2019

I.V.B.
    Nordheimer J.A.
I agree. P. Lauwers J.A.
I agree. G. Pardu J.A.





[1]
Here the application for a sealing order may have been a misnomer. The parties
    were not seeking to seal documentary information that had been filed with the
    court. Rather the parties sought in substance, a confidentiality order: see
Elbakhiet
    v. Palmer
, 2019 ONCA 333.



[2]

Despite the specific wording of the endorsement granting leave
    to appeal to the Divisional Court, only the issue of the application of the
    deemed undertaking rule was considered and determined. Consequently, these
    reasons also only deal with the application of the deemed undertaking rule.


