highly unlikely, as I found on the certification motion. It also
gave an insufficient and simplistic explanation of the potential
limitations issues if a franchisee opted out of the class action but
did not pursue his or her own individual action in a timely way.
[73] The campaign demonized class counsel. It preyed on franchisees’ scepticism of lawyers.
[74] That demonization continued on the motion, with Pet
Valu submitting that this motion is really being driven by class
counsel’s interest in a large fee. Class counsel has been appointed
by the court, having found that a class action serves the goals
of the CPA and that this action meets the test under s. 5(1) of
that statute, including the requirement that the class repre-
sentative has retained competent counsel. Class counsel has a
responsibility to class members and the court to ensure that the
opt-out process is fair. Unfair aspersions of this nature, which
denigrate the discharge of class counsel’s responsibility and
challenge his integrity and professionalism, are entirely unwar-
ranted. As Rosenberg J.A. observed in R. v. Felderhof (2003),
68 O.R. (3d) 481, [2003] O.J. No. 4819 (C.A.), at para. 93, “It is a
very serious matter to make allegations of improper motives or
bad faith against any counsel.”
[75] To conclude, there is a reasonable probability, in my view,
that many franchisees decided to opt out as a result of mislead-
ing information and unfair pressure amounting to intimidation.
The fact that some class members have sworn that they did not
experience pressure and acted on their own volition does not
alter my conclusion.
[76] The question is, what should be done to remedy this
unfortunate situation?
The Appropriate Remedy
[77] The plaintiff asks for an order setting aside all opt-outs
received and postponing the opt-out process until after the
plaintiff’s pending summary judgment motion has been finally
determined. In the meantime, it asks that the court send an
additional notice, explaining what has transpired and why.
[78] Pet Valu opposes this extraordinary relief. It objects to a
process that would allow class members to “wait and see”
whether the action is successful before they decide to participate. It points out that this is not how class actions are supposed
to work. It argues that this would permit class members to avoid
the res judicata effect of a class action by opting out of the class
action if it is not successful, giving them a “second kick at the
can”, either individually or as part of a subsequent class. The
