undue influence” (at para. 74, emphasis added). He continued, at
paras. 75 and 76:
Although s. 17(6) addresses post-certification notice, it is relevant on this
motion because of its purpose. Here, the class members are being asked to
effectively “opt out” of the class proceeding by A&P prior to certification,
through the execution of the releases, without the benefit of the information
that would be provided in a certification notice. The primary protection for
the absent class members in the class proceeding process is the right to opt
out of the class action. It is axiomatic that no class member need participate
in a class action against his or her will. However, to ensure the integrity of
the opt-out process, absent class members must be fully informed of the issues
in the proceeding and the impact on them as individuals. Thus, s. 17(6) is
intended to prevent piecemeal dissemination of information critical to the
decision making process by one side or the other.
Further, the purpose and content of s. 17(6) serve as a useful guide with
respect to communications with the putative class members. In that respect,
the CPA does not prohibit pre-certification communication with the putative
class, nor does it require prior court approval for every communication.
Where, however, a communication constitutes misinformation, a threat,
intimidation, coercion or is made for some other improper purpose aimed at
undermining the process, the court must intervene.
(Emphasis added)
[63] In making these observations, I do not overlook the fact
that the opt-out process can also be a means for parties to
express their disapproval of the class action or to pursue others
means of resolving the issues: see 1176560 Ontario Ltd. v. Great
Atlantic & Pacific Co. of Canada Ltd., at para. 33; Fairview
Donut Inc. v. TDL Group Corp., [2008] O.J. No. 4720, 172
A.C. W.S. (3d) 609 (S.C.J.).
Discussion
[64] I accept that an order restricting communication is
extraordinary: see Smith v. National Money Mart Co., supra, at
para. 31. This should be particularly so where the communications come from a third party and not from the plaintiff or the
defendant.
[65] I also accept Pet Valu’s assurances that it was not party to
the activities of the CPVF. An extensive affidavit was sworn by
McNeely of Pet Valu. On the basis of that affidavit, which is
largely unchallenged, I conclude that Pet Valu itself did not
interfere with the integrity of the opt-out process or attempt to
influence franchisees to opt out of the class action. I also conclude that Pet Valu did not directly encourage the CFC or the
CPVF to do so. That said, McNeely was clearly aware of what
CPVF was up to and was content to let it continue unabated.
[66] I also accept McNeely’s evidence that Pet Valu has not
taken and would not take repercussions against a franchisee as
