Federal Court of Appeal Denies Opt-Out Request in Class Action

Date: 20260625 Docket: A-335-24 Citation: 2026 FCA 118 CORAM: [NAME] J.A. [NAME] J.A. [NAME] J.A. BETWEEN: CORPORAL (RETIRED) [NAME] Appellant and [NAME] and THE ATTORNEY GENERAL OF CANADA Respondents Heard at Ottawa, [NAME], on June 23, 2026. Judgment delivered at Ottawa, [NAME], on June 25, 2026.

REASONS FOR

JUDGMENT BY: [NAME] J.A. CONCURRED IN BY: [NAME] J.A. [NAME] J.A. Date: 20260625 Docket: A-335-24 Citation: 2026 FCA 118 CORAM: [NAME] J.A. [NAME] J.A. [NAME] J.A. BETWEEN: CORPORAL (RETIRED) [NAME] Appellant and [NAME] and THE ATTORNEY GENERAL OF CANADA Respondents

REASONS FOR

JUDGMENT [NAME] J.A. [ 1 ] Corporal (Retired) [NAME] appeals a decision of the Federal Court that dismissed her motion for leave to opt out of a class proceeding brought on behalf of, among others, women and men who experienced sexual misconduct while serving in the Canadian Armed Forces: [NAME] v. Canada (Attorney General) , 2024 FC 1447. The proceeding was certified in accordance with a settlement agreement negotiated on behalf of the parties and approved by the Federal Court. Citing this Court’s decision in [NAME] v. Canada (Attorney General) , 2024 FCA 2 ( [NAME] ), leave to appeal to SCC refused, 41141 (May 30, 2024), the supervising judge determined that he lacked authority to grant [NAME]’s request to opt out. [ 2 ] A few days prior to the appeal hearing, [NAME] filed a motion requesting leave to introduce new evidence. The Attorney General of Canada, respondent in this appeal, opposed the request on the basis that [NAME] did not satisfy the criteria established by the Supreme Court in [NAME] v. The Queen , 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 ( [NAME] ). [ 3 ] The test for allowing new evidence on appeal requires the party seeking to file such evidence to establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant, in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible, in that it is reasonably capable of belief; and (4) is such that, if believed, it could reasonably have affected the result in the court below: Bell Canada v. [NAME] , 2023 FCA 106 ( Bell Canada ) at para. 4; [NAME] at p. 775. [ 4 ] Following the parties’ oral submissions, at the start of the hearing, the Court informed [NAME] that her motion to introduce new evidence would be denied, with reasons to be provided in the Court’s decision on the merits of her appeal. [ 5 ] In short, the Court was not satisfied that the new evidence [NAME] sought to introduce met the criteria outlined in [NAME] . In addition to her failure to file affidavit evidence in support of her motion —making it difficult to assess why the documents predating the Federal Court hearing were not produced at that time—the Court was not convinced that this new evidence bore on a decisive or potentially decisive issue on appeal, or that it could have reasonably influenced the outcome in the Federal Court. In particular, although some of the evidence pertained to the physical and psychological health issues experienced by [NAME] following an alleged sexual assault by another CAF member, the Federal Court had in fact acknowledged these health issues but had found that they were not unique among class members. In any event, the Court was not of the view that this case warranted exercising the Court’s exceptional discretion to admit new evidence: Bell Canada at paras. 4 and 11. [ 6 ] Regarding the merits of [NAME]’s appeal—specifically, whether the Federal Court had the authority to grant her leave to opt out of the class proceeding—the scope of the supervising judge’s jurisdiction to intervene is a question of law, which is reviewed for correctness. In contrast, the interpretation of the settlement agreement is a question of mixed fact and law, reviewed on a deferential palpable and overriding error standard: [NAME] at paras. 64‑67. [ 7 ] As Côté J., speaking for the majority on this issue, as noted in [NAME] at paragraph 116, stated in J.W. v. Canada (Attorney General) , 2019 SCC 20, at paragraph 120: In the context of the supervision of a settlement agreement, the terms of the agreement are determinative. While supervising judges are not free to approve an agreement that fully ousts their supervisory jurisdiction, their authority is limited and shaped by the terms of the agreement, once it is approved and determined to be fair, reasonable and in the best interests of the class. [ 8 ] Here, the supervising judge concluded that granting [NAME]’s request to opt out would amount to a significant alteration of the express terms of the settlement agreement, and therefore, he lacked the authority to do so. After considering [NAME]’s submissions, I am not persuaded that there was any reviewable error in the supervising judge’s determination of his authority under the circumstances. As this Court stated in Hébert v. [NAME] , 2020 FCA 186 ( [NAME] ), leave to appeal to SCC refused, 39518 (June 10, 2021), at paragraph 10, the Court “cannot meddle by changing the settlement terms, imposing its own terms or promoting the interests of certain class members over those of the whole class.” [ 9 ] [NAME] cites [NAME] at paragraph 22 for the proposition that class members can opt out after a deadline where the evidence demonstrates they were unable to make a fully informed and voluntary decision about remaining in the class; she asserts that her situation was precisely such, given her medical history and her counsel’s failure to advise her of her opt-out option. However, I find [NAME]’s reliance on [NAME] to be misplaced. The decision of 1250264 [COMPANY]. v. [COMPANY] ., 2013 ONCA 279, 115 O.R. (3d) 653 ( [NAME] ), upon which [NAME] relied, and 1176560 [COMPANY]. v. Great Atlantic & Pacific Co. of [COMPANY] ., 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182, leave to appeal to ONCA refused, M31109 (May 11, 2004), which [NAME] cited, involved pre-settlement situations—unlike the present matter. Moreover, the concept of “informed and voluntary decision” in those cases referred to circumstances where parties were coerced through misinformation, threats, or intimidation into not opting out, thereby undermining the settlement process. In this case, there is no suggestion that [NAME] was subjected to any coercion or undue influence preventing her from opting out. [ 10 ] [NAME] contends that the difference between the late claims provision— which allows the Court discretion to grant leave for class members to submit late claims—and the opt-out provision, which does not include such discretion, is discriminatory. I cannot agree. The settlement agreement is a contract negotiated and agreed upon as part of a broader compromise between parties represented by sophisticated counsel, and it is not for the Court to question why certain provisions allow for options that other provisions do not. [ 11 ] In addition, I can find no palpable and overriding error in the supervising judge’s determination, after interpreting the relevant clauses, that granting [NAME]’s request would constitute a significant change to the express terms of the settlement agreement, tantamount to rewriting the settlement agreement, something the Court cannot do. [ 12 ] Finally, and without determining whether the test set out in [NAME] v. [NAME] , 2022 ONCA 725 should be applied in these circumstances, I find no palpable and overriding error in the supervising judge’s conclusion that the test was not satisfied. [ 13 ] After hearing [NAME] recount the difficulties that she has endured over the past eight years, I am sincerely sympathetic to her situation. However, the fact remains that she has not demonstrated any reviewable error by the supervising judge.

Accordingly, I would dismiss the appeal. As I find no circumstances justifying a deviation from the general rule outlined in Rule 334.39, I will make no order regarding costs. "[NAME]" J.A. “I agree. [NAME] J.A.” “I agree. [NAME] J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-335-24 STYLE OF CAUSE: [NAME] v. [NAME] AND [NAME] AND THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: OTTAWA, [NAME] OF HEARING: June 23, 2026

REASONS FOR

JUDGMENT BY: [NAME] J.A. CONCURRED IN BY: [NAME] J.A. [NAME] J.A. DATED: JUNE 25, 2026 APPEARANCES : [NAME] ON HER [NAME] For The Respondent SOLICITORS OF RECORD : [NAME] of Canada For The Respondent