Ontario Court Reinforces Finality of Class Proceedings in Rejecting Late Opt-Out Request

Class members seeking to opt out of class actions after the opt-out deadline and a settlement bear a heavy onus. This principle was emphasized in Nardi v. Sorin Group Deutschland GmbH 2026 ONSC 3891, where Justice Glustein dismissed a motion to extend the opt-out deadline in a product liability class action, holding that parties to a settlement reached in principle can be prejudiced by a late opt-out request, even before the settlement is finalized or approved by the court.

The class action alleges negligence in respect of devices used in cardiac surgeries, which exposed patients to mycobacterium chimaera. The class action was certified in May 2021 with an opt out deadline in September 2021. A settlement-in-principle was reached on June 27, 2025.

The class member seeking to opt-out underwent open-heart surgery in March 2016. His condition remained stable until April 2023 when he began experiencing symptoms of infection. But he did not become aware of the class action until June 2025, by which time the opt-out deadline had passed.

Despite finding that the moving class member’s delay was excusable, the Court held that he failed to establish that no prejudice would result to the defendant, or the integrity of the process, from permitting the late opt out. By the time of the requested extension, the defendants had already reached a settlement in principle with the class, negotiating a lump-sum payment for a class-wide release. The Court held that permitting late opt-outs would require the defendants to pay the same amount for a narrower release, abandon the settlement, or renegotiate after disclosing their position, all of which would undermine the finality of the class proceeding. Carving out the moving class member would have altered the bargain, which had been priced on the assumption of a class-wide release. As Justice Glustein held, there was no way to “unscramble” the agreement by carving out the moving class member.

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• The Court applied the test from Johnson v. Ontario, 2022 ONCA 725, which requires a class member seeking a late opt-out to show (i) that the delay was due to excusable neglect, in good faith and on a reasonable basis, and (ii) that no prejudice would result to participating class members, the defendant, or the integrity of the class proceeding.
• The Court rejected the moving class member’s argument that the Johnson test does not apply because his symptoms did not emerge until two years after the opt-out deadline. A class member facing a latent risk has two choices at the opt-out deadline: remain in the class action, or opt out and preserve the right to bring an individual action later, subject to limitations.
• Justice Glustein observed that the outcome might have differed had the moving class member sought the extension in September 2023, shortly after he first consulted counsel, rather than after the settlement in principle was reached.