Executive Summary: Key Legal and Evidentiary Issues

• The Moving Parties sought a court-ordered extension to opt out of a certified class action after the standard opt-out deadline had already passed.
   
• Justice Glustein applied the excusable neglect/no prejudice test established in Johnson v. Ontario to determine whether the extension was appropriate.
   
• Evidence showed that Frédéric Roy-Richard had no notice of the class action or its opt-out deadline until he retained counsel in June 2025.
   
• Although the excusable neglect requirement was satisfied, the Defendants had already reached a settlement in principle before learning of the Moving Parties' individual claim.
   
• Permitting a late opt-out at that stage would have exposed the Defendants to prejudice by unraveling a negotiated class-wide release.
   
• Ultimately, the court dismissed the motion and left costs to be determined through further submissions.
   

Facts of the case

Frédéric Roy-Richard ("FRR") and his immediate family members, Cindy Plante and four minor children, brought a motion under section 12 of the Class Proceedings Act, 1992 ("CPA") for an extension of time to opt out of a certified class action pending before the Ontario Superior Court of Justice against Sorin Group Deutschland GmbH and LivaNova Canada Corporation (the "Defendants"). The underlying class action, commenced July 18, 2017 and certified on an unopposed basis on May 21, 2021, alleged negligence in the design, manufacture, and post-market duty to warn regarding the Stockert Heater Cooler System 3T (the "3T Device"), which was linked to a risk of Mycobacterium chimaera infection in patients who underwent open-chest cardiac surgery. FRR, who had been treated at the Montreal Heart Institute ("MHI") since 2015 for Loeys-Dietz syndrome, underwent open-heart surgery on March 16, 2016. In October 2016, MHI sent him a letter describing a low but real infection risk, without naming the Defendants. The certified class's opt-out deadline was September 27, 2021 [elsewhere in the decision referred to as September 17, 2021], and FRR did not opt out by that date. His condition remained stable until April 2023, when he began experiencing symptoms; on July 21, 2023, a blood sample confirmed a Mycobacterium chimaera infection, and he subsequently underwent further surgeries and prolonged antibiotic treatment. FRR had an introductory call with a lawyer, Marie Malavaud, on September 15, 2023, but the class action was not discussed. It was only at a June 17, 2025 meeting with counsel that FRR first learned of the class action, at which point he retained counsel and later instructed the filing of an individual lawsuit in Quebec (issued November 26, 2025, seeking $1.85 million in damages) along with a motion for a late opt-out, served February 20, 2026. In the interim, on June 27, 2025, the Defendants and class counsel reached a settlement in principle at mediation, involving a lump-sum payment in exchange for a class-wide release, without any knowledge of FRR's claim.

Policy and legislative provisions at issue

The motion turned on section 12 of the CPA, which gives the court discretion to make orders it considers appropriate to ensure the fair and expeditious conduct of a class proceeding, including extending a court-imposed opt-out deadline. The right to opt out itself is protected under section 9 of the CPA, reflecting a class member's litigation autonomy to choose between an individual action and participation in the class proceeding. The governing test for extensions was drawn from the Court of Appeal's decision in Johnson v. Ontario, which adopted the "excusable neglect/no prejudice" framework originally set out in Young v. London Life Insurance Co. Under this test, an extension may be granted only where the delay in opting out resulted from excusable neglect in good faith and with a reasonable basis, and where extending the deadline would not cause prejudice to the participating class members, the defendant, or the integrity of the class proceeding process.

Reasoning and analysis

Justice Glustein found that the Johnson test applied notwithstanding the Moving Parties' argument that it was "impossible" for FRR to act before his symptoms appeared, holding that a class member's choices under the CPA depend on knowledge of the class action and the opt-out deadline, not on whether damages have yet materialized. On the first branch of the test, the court found that FRR had established excusable neglect: he had no notice of the class action until June 2025, there was no evidence of direct notice to him, and it was reasonable that he had not seen the social media or newspaper notices published under the certified notice plan. On the second branch, however, the court found that the Moving Parties had not shown an absence of prejudice. The Defendants and class counsel had reached a settlement in principle on June 27, 2025, before either party knew of FRR's claim, and had negotiated a lump-sum payment in exchange for a class-wide release in reliance on the finality of the opt-out process. The court held that permitting a late opt-out at that stage would force the Defendants to either pay the settlement amount for a lesser release, abandon the settlement and resume defending the claim, or attempt to renegotiate after having disclosed their settlement position — all of which would cause prejudice and undermine the certainty that opt-out deadlines are meant to provide to those administering and defending class proceedings.

Ruling and overall outcome

Justice Glustein dismissed the motion, finding that while excusable neglect had been established, the Moving Parties failed to demonstrate an absence of prejudice to the Defendants or to the integrity of the class action process, given the settlement in principle already reached. The Defendants were therefore the successful party in defeating the motion for a late opt-out. On costs, both parties indicated they were seeking approximately $35,000, inclusive of HST and disbursements, as partial indemnity costs of the motion, but the court did not fix a quantum in this decision. Instead, the court directed that if the parties could not agree on costs, the Moving Parties could deliver written submissions of no more than three pages by July 31, 2026, the Defendants could respond with submissions of no more than three pages by August 14, 2026, and the Moving Parties could reply with submissions of no more than one page by August 21, 2026. Accordingly, no specific monetary award was made or determined in this decision.