About Class Actions / Litigation

Frequently Asked Questions

How does a class proceedings claim work?

A class proceedings claim is a civil lawsuit where one or more persons, called "class representatives," sue on behalf of a class of people.  The following simple example will illustrate the effect of a class proceeding claim and how it works.

Consider the situation of an employee of a large company that employs 1,000 other employees in an identical position.

Suppose that this particular employee has discovered that the company owes him or her overtime pay in the amount of $1,000.

Without class proceedings legislation, the recourse of that customer consists of a complaint to the company or some administrative board and/or perhaps an action in small claims court for recovery of the $1,000 owed.
Under a class proceedings claim, the customer can commence a proceeding as a representative plaintiff on behalf of himself/herself and all 1,000 employees who are similarly affected.

In such a situation, there is now exponential amount at stake because all 1,000 employees have overtime claims against the company.

A claim is commenced by way of a lawyer preparing and issuing a statement of claim in court.

In order for the claim to proceed as a class proceedings claim, the representative plaintiff is required to obtain an order of the court certifying the claim as a class proceeding and appointing the person as representative plaintiff for the class.

If the claim is certified, it proceeds as a class proceedings claim with the court managing the claim so as to ensure that it proceeds smoothly through to trial.

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What is a representative plaintiff?

The representative plaintiff is one who agrees to act on behalf of a class in commencing a proposed class proceedings claim.

The plaintiff will be appointed by order of the court and formally designated the representative plaintiff when the action is certified as a class proceeding.

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What does the representative plaintiff do?

The representative plaintiff represents the interest of the class in prosecuting a class proceedings claim.

The representative plaintiff works with class counsel lawyers in attempting to ensure that the interests of all the class are protected and pursued.

The representative plaintiff will be required to consult with class counsel on an ongoing basis, possibly attend at an examination for discovery (like a deposition) at which sworn evidence is given and attend in court when the matter is ultimately called for trial.

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Are there special qualifications to be a representative plaintiff?

No special skill or qualification is required in order to serve as a representative plaintiff. A representative plaintiff must be able to fairly and adequately represent the interests of the class.

Anyone can serve as a representative plaintiff provided that the individual will properly represent the interests of the class and does not have any interest which is in conflict with the interests of the class.

If a class proceedings claim is successful, the representative plaintiff is responsible for helping to obtain justice for all class members.

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What is certification?

Certification is the process by which a court order is granted certifying a lawsuit as a class proceeding and appointing the plaintiff as a representative plaintiff for the class.

It essentially amounts to permission of the court to prosecute the claim as a class proceeding.

Certification of a claim is mandatory if five statutory requirements are satisfied:

  • The claim must disclose a proper cause of action;
  • There must be a class of two or more persons;
  • The proposed representative plaintiff must be appropriate, present a reasonable plan for prosecution of the litigation and must have no conflict with other class members;
  • There must be issues of fact or law common to all class members;
  • A class proceeding must be the preferable procedure for resolution of the common issues.
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How do the lawyers generally get paid?

Class proceedings legislation increases access to justice by allowing lawyers to charge contingency fees securing payment based on the result obtained for class members.

In most cases, the representative plaintiff is not required to make any payment of fees and disbursements.

In class proceedings claims, all fees and costs charged by the lawyers are subject to approval of the court.
Typically, a retainer agreement is executed by the representative plaintiff whereby the representative plaintiff agrees to payment of lawyers’ fees and costs from the overall judgment or settlement amount on behalf of the entire class.

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Are there advantages to a class proceedings claim?

Class proceedings legislation increases access to justice, forces behavior modification and streamlines the judicial process. They seek to ensure that people or groups with similar claims are treated similarly. They help eliminate common barriers, such as economic barriers, which prevent people and groups from pursuing litigation. They also avoid the necessity for hundreds, or thousands of people or groups to file similar individual lawsuits.

In a majority of cases, limitation periods are extended for all class members and the court can make an aggregate award for all class members.

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How do i participate in an ongoing/active class proceedings claim?

Class members need not do anything to participate in an ongoing/active class proceedings claim. All class members are deemed to be part of the lawsuit unless they withdraw/opt-out.

In respect of claims that we are pursuing, however, we do compile and maintain a database of class members in order that we can communicate with the class on an ongoing basis.

To be added to our database in respect of any ongoing/active claims, click on the particular active claim and then follow the instructions to submit your information.

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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 usually set out in a specific notice. If a person opts out, he/she will not be bound by any settlement or judgment in the class action. However, because he/she has opted out, 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. 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.

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