| |
What is a class action?
A class action is a procedural tool where one party, or a group of parties, sues as representative of a larger class as defined in the lawsuit. To proceed as a class action, the court must first certify the case as such. If certified, any judgment obtained in the class action will be binding on the class as defined unless a member of the class chooses to be excluded from the class action or "opts out".
How do I join a class action?
You do not have to do anything to join a class action. If you meet the definition of the class certified by the court, you are automatically considered as a class member, unless you opt out of the class proceeding following certification. However, in order to assist the lawyers representing the class it is helpful to provide information related to your claim and your contact information to class counsel. In this way, you will be able to receive direct notice of certification, the results of the common issues trial, settlement, or other major steps in the proceeding. Regardless of whether you have contacted class counsel, if you fall within the definition of the class, you will be bound by any judgments obtained in the class action unless you opt out.
What does opting out mean?
Upon certification, members of the class are given notice of the certification, information about the lawsuit and are given the opportunity to opt out of the class action. A class member can choose not to participate in a class action by opting out. The process for opting out is set out in the notice advising of certification. If a person opts out, he/she will not be bound by any settlement or judgment in the class action. However, if the case is successful, he/she will also not be entitled to any payment from a settlement or as a result of any judgment.
A person who opts out would, however, be entitled to bring an individual action or otherwise try to reach their own settlement with the defendant(s). Please be advised however, that you are required to commence litigation within the applicable limitation period. In most cases, a claimant must bring a claim within two years on which the cause of action arose. If you fail to file a claim within the limitation period, you will lose your right to commence an action altogether. As limitation periods may differ from province to province, you should confirm the limitation period with a lawyer or the law society.
What are the stages in class actions?
There are typically at least 5 distinct stages to a class action. These may be generally summarized as follows:
1. The Commencement of the Litigation: In Ontario, a lawsuit starts when the plaintiff files a document with the court called a "Statement of Claim". This document sets out all the facts which the plaintiff hopes to prove in his or her case and tells the defendant what the lawsuit is about. In proposed class actions, the Statement of Claim also typically includes a definition of the proposed class on whose behalf the plaintiff seeks to act.
2. The Certification Motion: Before the plaintiff can proceed any farther with the class action, it is first necessary to get the court's approval of the case as a class action. The court does not decide the merits of the case at this early stage, but merely examines whether the case is appropriate for treatment as a class action. This procedural step is referred to as certification. Section 5(1) of the Class Proceedings Act sets out five requirements for certification. These are:
(a) The pleadings disclose a reasonable cause of action;
(b) There is an identifiable class of two or more persons;
(c) The proceeding raises common issues;
(d) A class action is the preferable procedure for resolving the common issues;
(e) There is a representative plaintiff that can adequately represent the interests of the class who does
not have a conflict with other class members on the common issues and who has produced an
appropriate litigationplan for the conduct of the proceeding.
If the action is not certified, then the plaintiff will only be allowed to bring his or her claim as an individual lawsuit.
3. Discovery: The next stage in a class action is discovery. The plaintiff's lawyers will get a chance to review the documents of the defendant(s), and to question one or more representatives of the defendant(s) in front of a court reporter, in preparation for trial. The defendant's lawyers will also get a chance to review the plaintiff's documents, and to question a representative of the plaintiffs, also in preparation for trial.
4. The Common Trial: Finally, the case proceeds to a trial of the common issues certified by the court. If the plaintiffs are successful at the common issues trial, then all other class members will also benefit.
5. Damage Distribution or Individual Issues Stage: Assuming the representative plaintiffs were successful at the common trial, there may be money to distribute to class members whether or not they actually participated in the common issues trial. In many cases, however, it will be necessary for individual class members to bring claims following the common issues trial through a mini-trial or other streamlined process to resolve any individual issues that were not resolved at the common issues trial in order to be entitled to compensation.
Each of these stages can take a long time, or a short time. In Ontario, some class actions have gone from start to finish in 1-2 years. In other cases, however, defendants have fought long and hard to avoid liability. Settlement can occur at any time, although to be binding on class members the case must first be certified. All settlements must be approved by the court to be effective. It is hard to predict how long a particular case will last, or whether it will settle, particularly in the face of a determined opponent. The battle for justice however, is never easy. One must be patient, and determined, in order to succeed.
As a class member, how much will the litigation cost me?
You do not need to pay anything to participate in the class action. The representative plaintiff(s) typically enter into contingency fee agreement with class counsel, which provides for the payment of legal fees if the action is resolved successfully either by settlement or judgment. Such legal fees are usually paid from the proceeds of the settlement or judgment and are not paid by class members directly. No fees are paid if the class action is not successful. All legal fees of class counsel must first be approved by the court, which must be satisfied that the fees are fair and reasonable.
As a class member, do I have any responsibility to pay for any adverse costs awards made against the plaintiffs in the litigation?
No. Under section 31(2) of the Class Proceedings Act, class members other than the representative plaintiff(s) are not liable for costs except with respect to the determination of their own individual claims.
|
|