Ontario court bars a late class action opt-out after settlement, even where a cardiac injury claimant acted in good faith
A man who developed a life-threatening heart infection years after open-chest surgery has lost his bid to pursue a $1.85-million individual lawsuit. The reasons: the opt-out deadline in a national class action had already passed, and a settlement was already in the works.
As the motion was dismissed in Nardi v. Sorin Group Deutschland GmbH, 2026 ONSC 3891, it’s important to note that when a class action settles, the window to exit it closes fast, and good intentions alone will not keep it open.
Whether an opt-out deadline can be extended after a settlement
Under s. 12 of Ontario’s Class Proceedings Act (CPA), courts have the discretion to extend an opt-out deadline. However, that discretion has limits.
The moving party, Frédéric Roy-Richard, underwent open-chest cardiac surgery at the Montreal Heart Institute (MHI) in March 2016 using the Stockert Heater Cooler System 3T device. The device was allegedly contaminated with Mycobacterium chimaera, a bacteria that:
- can take months or years to produce symptoms
- caused infection in only two out of 8,458 MHI patients who had cardiac surgery since 2012, according to the MHI
- has no curative treatment once contracted systemically
Roy-Richard did not learn he had the infection until July 2023, which is nearly two years after the September 27, 2021 opt-out deadline had passed. He only learned of the class action itself on June 17, 2025, when he retained Ménard Martin Lawyers in Montreal.
Ten days later, on June 27, 2025, the class action parties reached a settlement in principle, which is a lump-sum payment in exchange for a class-wide release. Roy-Richard then filed an individual action in the Superior Court of Québec for $1.85 million in damages in November 2025, and brought a motion to opt out late.
The court dismissed Roy-Richard’s motion.
What the Johnson test means for late opt-out requests
The governing framework comes from Johnson v. Ontario, 2022 ONCA 725. Under that test, a court will only extend an opt-out deadline where the moving party shows two things:
- excusable neglect: the delay was in good faith and had a reasonable basis
- no prejudice: granting the extension will not harm the class, the defendant, or the administration of justice
Whether there was excusable neglect
Both conditions must be met. In this case, the first was satisfied. Roy-Richard never received direct notice of the class action. His lawyer at MML was unaware of it during their initial September 2023 call, even though other lawyers at the same firm had acted for opt-out clients in the same proceeding.
The court held that knowledge of the class action could not be imputed to Roy-Richard simply because his law firm knew about it.
Whether prejudice is present or not
The second condition, however, was not met. The defendants had negotiated the settlement without any knowledge of Roy-Richard’s claim, relying on the opt-out deadline having passed. Allowing a late opt-out would leave them to either:
- pay the agreed lump sum for a lesser release
- walk away from the settlement entirely, or
- renegotiate after already revealing their settlement position
Why the timing was fatal to the cardiac injury claim
Roy-Richard’s lawyers argued it was “impossible” for him to act before the opt-out deadline because his symptoms did not appear until April 2023. Again, the court rejected this.
Under Ontario law, class membership is determined at certification, and not when damages emerge. The court added that a class member with latent injuries still has choices at the opt-out stage: stay in the class action, or opt out and preserve individual rights.
The court added a pointed note: had Roy-Richard sought the extension in September 2023, when he first consulted MML, the outcome “may well have been decided differently.” The settlement had not yet occurred at that point.
As such, those with latent injury claims tied to class actions need early conflict-checks and legal advice, especially before settlements remove the option entirely.
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