Reasonable to seek direct notice program in national class action where substantial number of class members resided outside Ontario

Defendant was successor to insurance and investment company that was subject of proposed national class action in Ontario. Action involved two distinct and discrete claims, with one relating to management fee overcharges, and other relating to alleged underperformance of particular insurance investment fund. Action was settled in relation to management fee claim, and certification was granted for underperformance claim. Parties agreed about content of notice to class members, but defendant was not satisfied with proposed notice program for sending notice to class members. Parties made submissions on notice program requirements. More robust notice program proposed by defendant was approved, with cost of program to be shared one-third by plaintiff and two-thirds by defendant. Notice program was to involve: (a) direct mail notice to class members based on list of class members provided by defendant; (b) bad-address resolution protocol; (c) posting of notice or link to notice on class counsel’s website; (d) posting of notice or link to notice on defendant’s website; and (e) class counsel issuing press release about certification of action and indicating that formal notice was available through its website. Plaintiff’s notice program would have been adequate for purpose of giving class members notice of right to opt out, but defendant’s concern was whether courts in other provinces would recognize Ontario judgment if notice program was not more robust. It was reasonable for defendant to seek direct notice program in national class action where substantial number of class members resided outside Ontario. Since defendant was predominant beneficiary of robust notice program at this juncture, it should bear greater proportion of costs of notice program.

Fantl v. ivari (2018), 2018 CarswellOnt 11870, 2018 ONSC 4443, Perell J. (Ont. S.C.J.).