Ontario Superior Court Reminds Plaintiffs’ Counsel that Class Actions Notices Are Not Vehicles For Recruitment

Written By Ethan Schiff and Julien Sicco

Pugliese v Chartwell, 2024 ONSC 7146 (Chartwell) explores the limitations of notice provisions under class proceedings legislation. Justice Morgan refused to authorize a notice plan providing for direct notice to proposed class members advising of a discontinuance after certification was refused. In doing so, Justice Morgan distinguished notice to class members whose claims had been certified from notice to putative class members for whom certification was refused. Justice Morgan also emphasized that notices should not be used to recruit new representative plaintiffs or to advertise for class counsel.

Chartwell followed Pugliese v Chartwell, 2024 ONSC 1135, in which plaintiffs sought to certify eight proposed class actions on behalf of individuals infected with COVID-19 in Ontario long term care homes. Justice Morgan certified some of the proposed class actions. He also refused to certify two actions, which he authorized to be discontinued without prejudice to them later being reconstituted. Certification was refused because no representative plaintiffs had a cause of action against certain of the defendants.

After the certification decision, class counsel proposed a notice plan providing for indirect notice (i.e., notice published in media) for class members whose claims had been certified and direct notice (i.e., personally delivered notice) for putative class members whose claims were being discontinued. The direct notice would have requested that individuals contact class counsel if interested in making a new claim.

Justice Morgan approved an alternative notice plan that required only indirect notice. He held that class members whose claims had not been certified had lost the right to require notice that would impose a significant burden on the defendants. Justice Morgan also held that the direct notices as requested by class counsel were an impermissible attempt to recruit representative plaintiffs.

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• The proposed direct notice would have required the defendants to specifically identify contact information for residents, visitors and family members who contracted COVID-19. Justice Morgan accepted that such information was either “not available or only available through great expenditure of time and effort”.
• Justice Morgan directed that the plaintiffs bear 100 percent of the costs of implementing the notice plan in the two proposed class actions that were authorized to be discontinued, and 75 percent of the costs of implementing the notice plan in the remaining actions.
• The general principles of notice include, among other things, that sufficient steps be taken to provide adequate notice (which considers the number of class members, their places of residence and the cost of giving notice). Actual notice to any particular class member is not required (see 3113736 Canada Ltd v Cozy Corner Bedding Inc, 2020 ONCA 235 and Johnson v Ontario, 2022 ONCA 725).

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