Ontario Court Bars Late Cardiac Injury Claim Due to Opt-Out Deadline

• A man with a life-threatening heart infection lost his bid for $1.85 million in damages due to a missed opt-out deadline.
• The court relied on the governing framework established in Johnson v. Ontario, which sets out two conditions for extending an opt-out deadline.
• Individuals with latent injuries tied to class actions must seek early conflict-checks and timely legal advice to preserve their individual rights.

Had Roy-Richard sought the extension in September 2023, when he first consulted MML, the outcome 'may well have been decided differently.'

A man who developed a life-threatening heart infection after open-chest surgery has lost his bid to pursue a $1.85-million individual lawsuit. The court's decision was based on the fact that the opt-out deadline in a national class action had already passed, and a settlement was already underway. The case, Nardi v. Sorin Group Deutschland GmbH, highlights the importance of timely legal advice for individuals with latent injuries tied to class actions.

The plaintiff, Frédéric Roy-Richard, underwent open-chest cardiac surgery in March 2016 using a device that was allegedly contaminated with Mycobacterium chimaera. He did not learn he had the infection until July 2023, nearly two years after the September 27, 2021 opt-out deadline had passed.

Roy-Richard's lawyers argued that it was impossible for him to act before the opt-out deadline because his symptoms did not appear until April 2023. However, the court rejected this argument, stating that class membership is determined at certification, and not when damages emerge.

The case relies on the governing framework established in Johnson v. Ontario, which sets out two conditions for extending an opt-out deadline. The first condition requires that the moving party show they never received direct notice of the class action. In this case, Roy-Richard's lawyer at Ménard Martin Lawyers was unaware of the class action during their initial September 2023 call.

The second condition requires that the defendants had no knowledge of the claimant's claim when negotiating the settlement. The court held that allowing a late opt-out would leave the defendants to either accept the claim or reject it, which could have significant consequences for the settlement process.

Under Ontario law, courts have discretion to extend an opt-out deadline under s. 12 of the Class Proceedings Act (CPA). However, this discretion has limits, and the court's decision in Nardi v. Sorin Group Deutschland GmbH highlights the importance of timely legal advice for individuals with latent injuries tied to class actions.

The case has significant implications for individuals with latent injuries tied to class actions. The court's decision emphasizes the importance of early conflict-checks and timely legal advice, especially before settlements remove the option to opt-out entirely.

Had Roy-Richard sought an extension in September 2023, when he first consulted Ménard Martin Lawyers, the outcome 'may well have been decided differently.' This highlights the need for individuals with latent injuries to seek legal advice as soon as possible to preserve their individual rights.

The case also underscores the importance of understanding the opt-out deadline and the settlement process in class actions. Individuals who fail to act timely may face significant consequences, including losing their right to pursue an individual lawsuit.

Lawyers advising clients with latent injuries tied to class actions should conduct early conflict-checks and provide timely legal advice, as settlements can remove the option to opt-out entirely.

Source: Original reporting via Canadian Lawyer