or otherwise inappropriate information: see Mangan v. Inco Ltd.
(1998), 38 O.R. (3d) 703, [1988] O.J. No. 551 (Gen. Div.).
[60] Where necessary to uphold the integrity of the opt-out
process, the court can and must intervene by imposing condi-
tions on communications between the parties and class members
or by taking such other measures as may be required:
— 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Can-
ada (2002), 62 O.R. (3d) 535, [2002] O.J. No. 4781 (S.C.J.),
at paras. 69-92, leave to appeal granted (2003), 64 O.R. (3d)
42, [2003] O.J. No. 1089 (Div. Ct.), affd (2004), 70 O.R. (3d)
182, [2004] O.J. No. 865 (Div. Ct.);
— Smith v. National Money Mart Co., [2007] O.J. No. 1507,
156 A.C.W.S. (3d) 1001 (S.C.J.), at para. 31: “If communication by a defendant to a class member during the opt-out
period is inaccurate, intimidating or coercive, or is made for
some other improper purpose aimed at undermining the
process the court will, on the motion of a party or class
member, intervene under s. 12 of the CPA to ensure the fair
determination of the class proceeding”;
— Robinson v. Rochester Financial Ltd., [2010] O.J. No. 3912,
2010 ONSC 5116 (S.C.J.): opt-out deadline extended as opt-out forms had been solicited not by the defendants but by
someone who had a relationship with them and did not
reflect informed decision by the person signing them;
— Ward-Price v. Mariners Haven Inc. (2004), 71 O.R. (3d) 664,
[2004] O.J. No. 2308 (S.C.J.).
[61] In Bywater v. Toronto Transit Commission (1999), 43 O.R.
(3d) 367, [1999] O.J. No. 1402 (Gen. Div.), Sharpe J. observed, at
p. 377 O.R.:
As these cases hold, the court must retain the power to sanction conduct
that undermines its statutory mandate to ensure that class members are
given appropriate information when required to make binding decisions in
relation to their legal rights in a class proceeding.
[62] In 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of
Canada Ltd., supra (S.C.J.), Winkler J. spoke, at para. 74 and
following, of the duty of the court to ensure that the CPA is
administered in a manner that is fair not only to the parties, but
most importantly to absent class members. He noted that the
underlying presumption is that class members “ought to be
free to exercise their right to participate in or abstain from
the class action on an informed, voluntary basis, free from
